El Dorado Refining Co. v. Lientz

• Decision Date: 12 August 1925
• Docket Number: No. 6766.,6766.
• Citation: 7 F.2d 814
• Parties: EL DORADO REFINING CO. v. LIENTZ.
• Court: U.S. Court of Appeals — Eighth Circuit

7 F.2d 814 (1925)

EL DORADO REFINING CO. v. LIENTZ.

No. 6766.

Circuit Court of Appeals, Eighth Circuit.

August 12, 1925.

Charles G. Yankey, W. E. Holmes, D. W. Eaton, and John L. Gleason, all of Wichita, Kan., for plaintiff in error.

Albert L. Berger, of Kansas City, Kan., and Jacob G. Wine, of Kansas City, Mo., for defendant in error.

Before SANBORN, LEWIS, and BOOTH, Circuit Judges.

WALTER H. SANBORN, Circuit Judge.

This is an action for the recovery of judgment for $6,487.50, the alleged purchase price of a patented furnace installed by B. P. Lientz, the plaintiff, under three boilers and six stills in the refining plant of the El Dorado Refining Company, a corporation, the defendant, and for the foreclosure of the mechanic's lien upon the real estate of the defendant upon which the material and labor therefor were placed. The complaint was filed on August 6, 1919. The defendant's answer, counterclaim, and cross-petition was filed July 6, 1920. The plaintiff's reply to the answer and counterclaim, and his answer to the cross-petition, was filed March 5, 1923. On March 14, 1924, the defendant made a motion for judgment in its favor on the pleadings, which was denied on March 17, 1924. The next day the trial commenced, and it resulted in a verdict, judgment, and decree for $5,078.97 against the defendant.

This case was submitted to this court on printed briefs, and the first complaint of counsel for the defendant is that the trial court overruled its motion for judgment on the pleadings and its objection at the opening of the trial to any evidence on the part of the plaintiff on the grounds that his complaint did not state sufficient facts to constitute a cause of action and that it appeared therefrom and from the other pleadings that he was not entitled to any recovery. The complaint stated these facts:

On September 27, 1918, the plaintiff made a written contract with the defendant to furnish and install the American Oil Furnace under three boilers and six stills in the defendant's refining plant at El Dorado, Kan., upon these terms: (a) The plaintiff guaranteed a full saving of fuel of the boilers of 12 per cent. and (b) against all mechanical defects that might develop within one year after installation; (c) the saving accomplished should be determined by a test run of the boilers for 12 hours on the installation existing at the time the contract was made, and a test run of 12 hours after the installation to be made under the contract had been made, and a comparison of the evaporation made by the two tests; if these tests should show a fuel saving of 12 per cent., the defendant should pay the plaintiff for the furnaces installed $3,900; if the furnaces should not accomplish a saving of 12 per cent., the plaintiff should allow a reduction of the cost price of $25 per furnace for every 1 per cent. that the saving should fall below 12 per cent., and, if the saving should exceed 12 per cent., the cost price of each furnace should be increased at the rate of $12.50 for every 1 per cent. above 12 per cent. On and before December 6, 1918, the plaintiff furnished and delivered to the defendant the American oil furnace and "all things pertaining thereto, as called for in said written contract, installing and furnishing all material and labor therefor, in accordance with said contract, placing same in said defendant's refining plant," and the value and price as stipulated in said contract to be paid by the defendant to the plaintiff for such furnaces was $6,847.50. On April 1, 1919, the plaintiff filed with the clerk of the District Court a statement of a mechanic's lien containing an itemized account of the amount due, a copy of which together with an itemized statement of material so furnished and a record of the test runs are attached to the complaint, marked Exhibits B, C, and D. Exhibit C contains a statement to the effect that the $6,487.50 claimed in the complaint consists of the $3,900, the price of the saving of fuel proved to be 12 per cent., and a "bonus as per test sheet attached, $2,587.50." Exhibit D, the test sheet, is entitled, "Statement of Test Runs of Boilers," and discloses the record of the test under the prior installation made on November 23, 1918, and of the test on December 3, 1918, after the plaintiff's furnaces were installed.

Counsel argue that these facts do not constitute a cause of action because they do not disclose in what way the tests were made and that they constituted a compliance with the terms of the contract. They cite the conceded rule that, when a plaintiff's right of recovery is subject to his performance of a precedent or concurrent condition, an averment of its performance or of an offer to perform it is indispensable to a statement of his cause of action upon it and insist that the facts in the complaint failed to show that the furnaces installed wrought the percentage of saving of fuel requisite to entitle the plaintiff to recover. But the exhibits to the complaint must be read and considered with it, and when so read and taken together they give fair notice to the defendant and to all who read them that the plaintiff claimed that the installation of the furnaces, their operation, and the tests prescribed by the contract had established his right to recover under the terms of the agreement the amount he claimed in his pleading.

That the defendant was not misled, and did not fail to perceive that such was the cause of action pleaded by the plaintiff, is demonstrated by the facts that in its answer to his complaint it alleged that the contract, the prices to be received for all burners installed under the boilers and under the stills were to be regulated and fixed according to the percentage of saving made in fuel used over and above 12 per cent.; that such was to be determined by tests of burners under each and all of the boilers and of the stills; and that after the burners were installed the plaintiff failed and refused to make any tests of the fuel used under one of the boilers and under all the stills. And the plaintiff in his reply to this answer expressly denied that the prices for the burners under the boilers and stills were to be fixed by tests of the saving in fuel used under all the boilers and stills, alleged that the determining tests were by the contract to be of the fuel used under the boilers only, denied that he refused or...