F. E. Marsh & Co. v. Light & Power Co. of St. Ansgar

• Decision Date: 16 November 1923
• Citation: F. E. Marsh & Co. v. Light & Power Co. of St. Ansgar, 196 Iowa 926, 195 N.W. 754 (Iowa 1923)
• Parties: F. E. MARSH & COMPANY, Appellant, v. LIGHT & POWER COMPANY OF ST. ANSGAR et al., Appellees
• Court: Iowa Supreme Court

195 N.W. 754

196 Iowa 926

F. E. MARSH & COMPANY, Appellant, v. LIGHT & POWER COMPANY OF ST. ANSGAR et al., Appellees

Supreme Court of Iowa, Des Moines

November 16, 1923

Appeal from Mitchell District Court.--C. H. KELLEY, Judge.

ACTION for balance claimed to be due under a contract for the construction of a dam and power plant on the Cedar River near St. Ansgar, Iowa, and for extra material and labor furnished, and to foreclose mechanics' lien.Defendants counter-claimed, demanding damages on account of defective construction.The decree entered allowed the original contract price and certain items of extras, and disallowed all other items sued on, denied mechanics' lien, allowed damages on counterclaim, and rendered judgment against plaintiff for $ 24,783.95.Both parties appeal.Plaintiff perfected its appeal first, and will be styled "appellant," and defendants"appellees."--Modified and affirmed on plaintiff's appeal; affirmed on defendants' appeal.

Modified and affirmed on plaintiff's appeal; affirmed on defendant's appeal.

Kugler Bartlett & Spaanum and Stipp, Perry, Bannister & Starzinger, for appellant.

William H. Salisbury, for appellees.

ARTHUR, J. PRESTON, C. J., EVANS and STEVENS, JJ., concur.

OPINION

ARTHUR, J.

I.

AppelleeLight & Power Company, desiring to construct a power plant on the Cedar River, employed George D. Dobson, of Des Moines, as engineer, to design the plant.The contract between the company and Dobson provided that Dobson should make plans and specifications for the dam and power house at the site selected; that Dobson should make "necessary soundings, to ascertain the character of the foundation at the dam site; to be present and assist the committee in receiving bids and awarding the contract;" and, "after completion of the structure, to make final inspection of same."In pursuance of this contract, Dobson prepared plans and specifications.Appellant was the successful bidder, and the job was awarded to it.On or about the 3d of July, 1919, the parties entered into a written contract, whereby appellant agreed to furnish the materials and perform the work for the erection and completion of a power house and concrete dam across the Cedar River, at the site selected, for the agreed price of $ 30,000.Appellant began work on the project about July 20, 1919, and the dam, sometimes referred to in the record as "the spillway," 150 feet in length, built in three sections of 50 feet each, was completed, by pouring the last concrete into the center section, on February 7, 1920.The lower portion of the power house, together with the penstocks and water gates, had not been completed and the superstructure of the power house had not been completed, at the time the concrete was poured into the center section of the dam.About the 11th of March, 1920, there came a thaw, and the river rose, and at midnight on March 16th washed around the west end of the dam and under a diversion wall which had been built, under a separate contract, from the northwest abutment, some 65 feet to the northwest.Thereafter, appellant completed the superstructure of the power house, and called upon Dobson, the engineer, to inspect the project.At the request of O. H. Koch, secretary of appellee company, the next morning after the disaster, Dobson went to the plant, and met with the committee of appellees, and visited the site, and made a general inspection of the conditions as they existed.At that time, there was some criticism by the committee as to the quality of the work, and appellant was told by the committee representing the owners to go ahead and complete the work, and that, when they got through, they would be paid.The top of the spillway was to be repaired, where it had been damaged by the ice gorge, and the power house completed, and then Dobson was again to inspect the plant.On April 23, 1920, after certain repairs had been made, as directed by the engineer, and after the power house had been completed, another meeting was held, at which were present a representative of the contractor, the owners, and Dobson, engineer; and at that time, Dobson again examined the work, and gave orders for certain further work to be done by the contractor.Dobson had been employed by appellees' committee to prepare plans to close up the gap made by the river around the west end of the dam; and after the preparation of same, he returned to St. Ansgar, and made a further inspection of the dam.At this time, Dobson looked over the project with Stinson, construction engineer of appellant, and directed Stinson to make repairs to the surface of the concrete in the spillway, and other repairs.On April 23, 1920, Stinson wrote to Dobson, stating:

"They followed your instructions in patching the top of the St. Ansgar dam.They completed the same; also repaired the break in the center section you reported.This I believe completes the same."

After Stinson had so notified Dobson, Dobson inspected the plant, and addressed to O. H. Koch, secretary of appellee company, on May 7, 1920, the following letter:

"I beg to report that I visited the site of the Light & Power Company dam and power house on the Cedar River on May 5, 1920, to make final inspection of the same.I find that Mr. Stinson, foreman for F. E. Marsh & Company, has complied with my order given him on April 21st and has made the required repairs to the spillway to replace the damaged concrete, and that the contractor has substantially complied with the plans and specifications, and that the contract has been fulfilled."

After said approval of the structure by Dobson, as "designing engineer for the Light & Power Company of St. Ansgar, Iowa," that "the contractor has substantially complied with the plans and specifications and that the contract has been fulfilled,"appellant demanded balance of the money due him under the original contract and the subsequent contracts, and appellees refused to pay same.Certain negotiations of settlement were made by the parties, but not completed.Thereafter, appellant filed its claim for mechanics' lien, claiming a balance due on its account, of $ 12,507.84, and later instituted this suit, demanding on the account, and praying for establishment of its mechanics' lien against the plant.

In addition to the contract price of $ 30,000, appellant includes in its account charges for materials and labor for certain extras which it claims were not covered in the original contract.It is not necessary to set forth all of the items claimed as extras.It is sufficient to say that claims for extras were allowed in the amount of $ 3,039, and the court denied recovery for other items of extras claimed.Appellees have paid appellant $ 28,572 on the original contract.The court found for appellant, that it was entitled to recover the original contract price of $ 30,000, and extras to the extent of $ 3,039, making a total amount of $ 33,039 that appellant was entitled to recover.

The items for extras claimed by appellant, which the court refused to allow and which are claimed by appellant on this appeal, are for concrete, with re-enforcing steel, and for loose rock excavation, due to increased depth of about two feet for foundation of the dam, which appellant claims it was not obliged to build, under the contract, in the amount of approximately $ 6,000.Some liens claimed by materialmen, which were conceded by appellant at the trial, were charged against appellant, and are not involved in either appeal.The court found that appellant is liable, and should be charged with the cost of reconstructing the west abutment of the dam, in the amount of $ 4,195; for the cost of repairing the power house, in the amount of $ 5,020; and for the cost of repairing the dam, or spillway, $ 19,835.Appellant takes the position that it has substantially complied with the plans and specifications, and that the acceptance and approval of the structure by the designing engineer is final, and settles the question of compliance with the contract, and that the court was in error in charging appellant with any amount for reconstruction and repair of the plant.Subject to such contention, appellant urges on its appeal that the amounts allowed and charged to it by the court below for reconstruction and repair are excessive, and if allowed at all, should be allowed in much smaller amounts.

Appellees deny owing appellant on the contract any amount whatever deny that appellant completed the construction of said dam and power house in accordance with the contract, and aver that appellant failed and neglected to carry out the contract, and failed and neglected to build and construct the said dam and power house, either according to the plans and specifications, or in a satisfactory, good, and workmanlike manner, aver that said dam and power house never were completed by appellant, and never have been accepted, so as to bind appellees; that portions of the structure were broken, crumbled, and swept away, because of the incomplete, faulty, and unworkmanlike manner in which the same had been constructed; that the mixture of cement, sand, and gravel of which the plant was constructed was not in proportion, and not mixed according to the plans and specifications; that the cement was not thoroughly mixed with the sand and gravel, and the mixture not laid, tamped, and bonded as required in the plans and specifications; and that the structure was faulty in other particulars; that, by reason of faulty workmanship, faulty mixture, and improper re-enforcing and bonding, the structure was weak, and gave way under water pressure; that appellant failed and neglected to carry the dam down to bed rock, as provided in the plans and specifications, and failed and neglected to clean the...