Doane College v. Lanham

• Decision Date: 16 May 1889
• Citation: 42 N.W. 405,26 Neb. 421
• Parties: DOANE COLLEGE, PLAINTIFF IN ERROR, v. JOHN LANHAM, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

42 N.W. 405

26 Neb. 421

DOANE COLLEGE, PLAINTIFF IN ERROR,
v.
JOHN LANHAM, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 16, 1889

ERROR to the district court for Saline county. Tried below before BROADY, J.

AFFIRMED.

Total amount	$ 675 00
Fourth, Lanham to pay Doane College twelve weeks'
service of J. W. Malone at $ 35.50	426 00
Loss freezing cistern water, etc.	100 00
Total	$ 1,201 00
Deduct from penalty five days at rate $ 100 per week	81 66
Total amount to be taken from contract price	$ 1,119 34

An action being afterwards brought by J. L. against Doane College for mechanical skill, work, labor, and material furnished by him under the said contract for the erection of the said building, and for additional mechanical skill, work, and labor, rendered necessary in the erection thereof by reason of changes in the height and plan of said building, and Doane College having answered in said action, setting up the submission of said points and matters of difference between the said parties, to arbitration, the award of said arbitrators thereupon, which found that there was due to the said Doane College the sum of eleven hundred and nineteen dollars and thirty-four cents, and that thereupon the said Doane College did tender to said J. L. "the balance his due, of which the said" J. L. "took all except the sum of one hundred and twenty and twenty-one one-hundredths dollars, and which the said Doane College now owes the said" J. L., "which they have often tendered him, * * * which amount he refuses to accept, and the said college now presents said amount of money in court," etc.: Held, That the said award be sustained as a counter claim or set-off in favor of Doane College and against the claim of J. L. to the extent and amount of $ 593.34, and no more.

2. Work and Labor: TRIAL: EVIDENCE. The contract was for putting up the masonry of Ladies' Hall, and furnishing all the brick and lime, cement and water, and all the labor necessary and of such quality as to put up the building in good workman-like manner in the shortest time possible, consistent with good work, etc., with all the ordinary specifications as to the manner of doing the work and providing the manner of measuring the same, and providing for paying for the same, when completed and accepted, at the rate of $ 10 per 1,000 of brick where the walls have one side of the repressed brick, which was to include chimneys, and $ 12 per 1,000 where the walls have two sides of repressed brick; also for paying in addition to the price named, seventy-five cents per 1,000 of bricks for all brick masonry laid in mortar made in part with hydraulic cement, etc. There being neither plan nor drawing of said building showing the height thereof, exhibited to the contractor, nor present at the time or previous to the entering into said contract, nor any specification or clause in said contract, stating or indicating the height of which said building was to be, nor the number of stories it was to contain; and there being evidence on the trial tending to prove that the contractor, without inexcusable negligence on his part, entered into the said contract in the honest belief and expectation that the brick walls of said building were to be, and that he would be required to build them, only two stories high; and there being also evidence tending to prove that the mechanical skill and labor necessary to build and erect the brick-work of the third story of the three-story walls and building, which, by the building committee of the defendant under the said contract, the contractor was required to and did actually build for the defendant, was actually worth at the rate of three dollars per thousand brick for one hundred and eighty-nine thousand, four hundred and one bricks, more and in excess of the average of that required to build and erect the same building of two stories in height only; there also being evidence tending to prove that said contract was entered into by both of the parties in view of the said building being erected upon a foundation and foundation walls then being constructed under another and separate contract by the said J. L., without change in the shape or character of the walls thereof, but that before the erection of the brick-work of said building, the plan and character of said foundation was changed from plain corners to buttressed corners; that said contractor was required and did build the walls and brick-work of said building to conform to said foundation so changed at an additional cost of skill, mechanical work, and labor, to the contractor, of the sum of thirty dollars; and there being evidence tending to prove the laying and placing in the walls of said building by the contractor, of a number of thousands of brick and a quality and kind of workmanship that under the terms of the said contract would amount to a sum which, added to the amount of compensation for the extra work as above set out and stated, and after deducting all moneys paid to the contractor under said contract and the amount of defendant's counter claim or set-off, allowed as above stated, would still leave an amount due to the contractor above the amount of the verdict: the verdict is sustained and judgment affirmed.

Dawes & Foss, for plaintiff in error, cited: Mills v. Miller, 4 Neb. 444; Coffing v. Taylor, 16 Ill. 457; Congregational Society v. Perry, 6 N.H. 164; Brown v. Bellows, 4 Pick. (Mass.) 192; Chase v. Strain, 15 N.H. 535; U. S. v. Packages, 17 Howard, 96; De Castro v. Brett, 56 How. Pr. (N. Y.) 484; Perkins v. Giles, 50 N.Y. 228; Morse, Arbitration and Award, 171, 172; 6 Wait's Act. & Def. 526.

Abbott & Abbott, for defendant in error, cited: Hall v. Vanier, 6 Neb. 85; McDowell v. Thomas, 4 Id. 544; Buntain v. Curtis, 27 Ill. 374; Johnson v. Noble, 38 Am. Dec. 485; Stewart v. Cass, 42 Id. 534.

OPINION

[26 Neb. 424] COBB, J.

This action was commenced in the district court of Saline county, by John Lanham against Doane College. The plaintiff in his petition alleges that Doane College is a corporation under the laws of this state; that on or about April 10, 1884, he contracted with the college through Thomas Doane, its legally authorized agent, to furnish the material and labor and to build and complete for Doane College the brick-work for a college building then being built for defendant on its grounds at Crete, Nebraska, and [26 Neb. 425] known as Ladies' Hall; that it was then and there agreed between the parties that the price of said labor and material should be: for brick laid in the wall with mortar mixed partly with cement, and [42 N.W. 406] with both sides of wall faced with repressed brick, $ 12.75 per one thousand brick; that chimneys should be computed as solid, and each cubic foot of such masonry, including door and window openings, should be computed to contain two hundred and twenty-four and one-half bricks; that it was then and there verbally agreed by and between said parties that said work should be built on a foundation the dimensions of which were then determined, and should be two stories high, with plain outer walls, similar to those of the college building then standing on said grounds, and should contain as nearly as could then be estimated, a total of 275,000 brick; that subsequently and after said work was commenced, the plan was so changed by defendant as to make the main part of said building three stories high, instead of two as originally agreed upon, with outer walls buttressed instead of plain; that the plaintiff, without any agreed price therefor, did, at the request of defendant, proceed to furnish the labor and material and build and complete the third story, and the outer walls with buttresses instead of plain, according to said change of plan; that said third story contains the amount of 195,000 brick; that the first and second stories contain the total amount of 275,000 brick, all of which is laid in mortar mixed with cement, according to contract; that of said 275,000 brick, two-thirds are faced on both sides with repressed brick, and the plaintiff, according to said contract is entitled for building the same to the sum of $ 12.75 per thousand; that the remainder, or one-third part thereof, were faced on one side with repressed brick, and the price of laying the same, according to the contract, is $ 10.75 per thousand. The plaintiff alleges that the extra expense of laying the third story over those of the first and second, amounts to $ 3 per thousand, and that to furnish [26 Neb. 426] material and labor and to build the third story of said building was worth $ 15.75 per thousand of brick for walls faced on both sides with repressed brick, and $ 13.75 per thousand for walls with one face of repressed brick laid in mortar mixed with cement, as stated; and that of the 195,000 brick laid in the third story of said building, 75,000 were faced with repressed brick on both sides, and 120,000 were so faced on one side; that all are laid with mortar properly mixed with cement; that the labor necessarily employed on the outer walls, buttressed instead of plain, is worth the sum of $ 15; and that the labor and material expended in the erection of the third story and the change in the outer walls amounts to $ 2,846.25. The plaintiff alleges that the total labor and material for the completion of the brick-work, according to the contract price for the first and second stories, and the actual value of labor and material for the third story, amounts to $ 6,170.50, furnished at the request and under the direction of defendant, completed September 1, 1884, and was accepted by defendant, whereby the defendant was and is liable to the plaintiff for the full amount thereof.

The plaintiff alleges that there has been paid him on said work by the defendant the sum of $ 3,740, and no more, and...