Feick v. Stephens
| Citation | 250 F. 185 |
| Decision Date | 08 April 1918 |
| Docket Number | 3092. |
| Parties | FEICK v. STEPHENS et al. In re SANDUSKY AUTO PARTS & MOTOR TRUCK CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Malcolm Kelly, George E. Reiter, and H. L. Peeke, all of Sandusky Ohio, for appellant.
John F Hertlein, of Sandusky, Ohio (King & Ramsey, of Sandusky Ohio, of counsel), for Edward S. Stephens, trustee.
Healy Ferris & McAvoy, of Cincinnati, Ohio, for Union Savings Bank & Trust Co., trustee.
See, also, 250 F. 191, . . . C.C.A. . . . .
In July, 1912, after appellant, George Feick, had submitted estimates, the Sandusky Auto Parts & Motor Truck Company entered into a verbal contract with him for the erection of certain buildings on its plant in accordance with certain plans. The original contract was subsequently changed. Certain alterations and delays in starting caused the agreed price to be increased from $12,576 to $15,175.50. Extras and alterations made during the construction were agreed upon. The reasonable value was approximately $3,700. Payments were to be made as the work progressed.
No time was fixed in the contract for the completion of the work or any specific part of it. By December, the work had progressed so that the plant could be operated. After that, progress was slow and with interruptions. Weather conditions prevented installation of part of the work during the winter. In March, a few items of the extra work were performed. In May, 1913, floors and foundations, which had been disturbed by the frost, were relaid.
The referee and the district judge found that none of the contract work, other than that of September, 1913, was done after the middle and 11th of May, respectively. The evidence shows that this May work was only to replace work originally done in 1912. For this replacement, no charge was made and it is not part of the claimed lien. Except for this and some small repairs made in July, no work was done by Feick after March until September 11, 1913.
Under a trust deed from the Sandusky Company to the Union Savings Bank & Trust Company, executed and recorded in March, 1913, the trust company took possession of the plant on August 15, 1913. Three days later, possession was surrendered to receivers appointed on August 18, 1913, by the state court under a creditor's bill. On September 11, 1913, while the property was in the hands of the receivers, Feick entered the premises in order, as advised by counsel, to perfect his right to a lien. Between that date and September 19, 1913, he performed work at a cost of about $350 to $400, in completion of the original contract as amended. This work was the installation of plumbing and fixtures in an additional toilet room. This toilet room, so completed, was the only part of the factory that had not been long theretofore occupied and used. Its use was not absolutely essential to the beneficial use of the factory because of the other toilet facilities. Feick's entry was without leave of the state court or of the receivers, and his performance was without their leave or that of the district court; no one either expressly consented or objected thereto. On September 13, 1913, while the work was being done, the petition in involuntary bankruptcy was filed. Adjudication followed in October.
To the petition of the trustee in bankruptcy to sell the property, under which the property was sold and liens transferred to the proceeds, Feick filed what is termed an answer, but what was treated by all parties as an intervening petition to establish his lien. By the trustee's answer thereto and the intervening petition and answer of the trust company, the questions of the validity of Feick's claim to a lien and of its priority over the trust deed were raised. The referee in bankruptcy, by whom the matter was heard, held the claim to be a first lien on the property. He disallowed, however, $375 of the $15,886.27 claimed, holding that, as the appointment of the receivers prevented further performance under the contract, a lien could not be established for the September work. On petition to review the referee's order, the cause was referred to him as a special master to take and report additional testimony. Thereupon, on all the evidence taken by him as referee and as master and without any further evidence in the district court, the finding of the referee in so far as it held the lien valid was reversed and the claim to any lien was disallowed. The cause is before us on appeal from this decree.
Before KNAPPEN, MACK, and DENISON, Circuit Judges.
MACK Circuit Judge (after stating the facts as above).
1. Appellee's contention that Feick had a right to abandon further performance under the contract because of the failure to pay in accordance with its provisions and to sue for damages or in quantum meruit for the value of the work done, or after March, even upon the contract as substantially performed, subject only to recoupment for the value of the September work, may be conceded. But he was not bound so to do. He was not compelled to take chances that what he had done would be held to be a substantial performance of the contract. He had a right to keep the contract in force, to refuse his assent to any repudiation or rescission and fully to complete the work. Whether or not he abandoned the further performance is a question of fact. It must be established by the evidence. Abandonment will not be presumed. The delay, it is true, was great; but Feick, evidently doubting whether he would get any money, was justified in not increasing his prospective losses until compelled by some demand of the company or by self-interest, definitely to elect between completion and abandonment.
On August 5, 1913, and August 16, 1913, he filed claims of lien. They were alike, except that in the second he gave credit for the plumbing fixtures not then installed. The filing of these claims did not amount to an election not to go on with the contract. They were merely precautionary steps in the attempted protection of his rights. In these lien claims, he did not assert either abandonment or...
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