Firestone Tire & Rubber Co. v. Riverside Bridge Co.

• Decision Date: 17 January 1918
• Docket Number: 3029.
• Citation: 247 F. 625
• Parties: FIRESTONE TIRE & RUBBER CO. v. RIVERSIDE BRIDGE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

247 F. 625

FIRESTONE TIRE & RUBBER CO. v. RIVERSIDE BRIDGE CO.

No. 3029.

United States Court of Appeals, Sixth Circuit.

January 17, 1918

Amos C Miller and Miller, Gorham & Wales, all of Chicago, Ill., and Hills & Van Derveer, of Cleveland, Ohio, for appellant.

Arthur A. Stearns and Stearns, Chamberlain & Royon, all of Cleveland, Ohio, for appellee.

Before KNAPPEN, MACK, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

By written contract dated May 25, 1910, and completely signed three days later, appellee, whom we shall call plaintiff agreed to provide materials for and perform the work connected with the fabricating and erecting of the structural steel and iron work, including stairwork, for a reinforced steel factory building of appellant, hereinafter called defendant. At defendant's instance, the structural steel was to be purchased by plaintiff from the Carnegie Company, with whom defendant had friendly business and personal relations. Defendant was to complete the foundations for the structure on or before July 14. This being done (as well as other things required of defendant, not necessary to enumerate), plaintiff was to begin the erection on July 14 and to complete the steel framework by September 2, and the stairwork by September 12 following, provided there were no delays due to rolling mills or other circumstances beyond plaintiff's reasonable control. The concreting and brickwork were to be done by defendant through a contractor working on a cost plus percentage basis, and plaintiff's contract provided for agreement between plaintiff, defendant's engineers and the concrete contractor upon a method by which plaintiff's work should be so begun and prosecuted as to permit the concrete contractor to begin work as soon as practicable after plaintiff's erection of the structural steel should be begun. Plaintiff's work was not fully completed until about December 1 to 7, 1910. Defendant, however, accepted the work as it progressed and finally, and made during the progress of the work four payments (aggregating 70 per cent. of the contract price, based on estimates provided for by the contract), the first on July 15 and the last on October 25, 1910; the concreting and brickwork, as well as the work of the other 'follow-up' trades being carried on in conjunction with and following plaintiff's steel erection.

The bill in this cause is filed to enforce a mechanic's lien for the full amount of the contract price, together with the value of certain extra work done and payments made by plaintiff for defendant's benefit. No question is made of the regularity and effectiveness of the lien proceedings, nor of plaintiff's right to recover its full claim, except as affected by defendant's asserted claim for damages due to plaintiff's delay in performing its work--consisting of increased cost of concreting and bricking in cold weather, plus rental of the building during the period of delay. The special master to whom the issues were referred found that plaintiff's erection of the superstructure was actually begun August 9; that the steel was not shipped by the Carnegie Company until 30 to 50 days after the order date (in fact, there was an average interval of 38 days); that the defendant's engineers held 60 out of 116 of plaintiff's drawings from 12 to 31 days after their receipt, and in several instances from 1 to 19 days even after their approval by the engineers; that the necessary time for approving these drawings was from 2 to 4 days; that it was impossible to determine the extent to which the delays of the engineers and of the Carnegie Company postponed fabrication, but that by reason of these delays plaintiff was entitled to have the date for completion extended a month or more, had it so asked; that the erection proper was practically finished November 9-- that is to say, leaving only the 'plumbing-up'-- and that the plumbing-up was done as fast as needed; that the erection proper was thus practically finished about a month later than it should have been, after allowing plaintiff a month's extra time; and accordingly deducted upwards of $11,000 from the amount to which plaintiff would otherwise be entitled, and rendered decree in plaintiff's favor for the balance. The District Judge (the present Mr. Justice Clarke presiding) overruled the exceptions to the master's report, thereby concurring in the master's findings, and entered decree on the basis found by the master for upwards of $28,000, with interest from the date of the master's report. The defendant alone appeals.

It is the well-settled rule, applicable to cases such as this, that the concurrent findings of master and judge upon questions of fact will not be disturbed upon anything less than a demonstration of plain mistake. Tilghman v. Proctor, 125 U.S. 136, 8 Sup.Ct. 894, 31 L.Ed. 664; Crawford v. Neal, 144 U.S. 585, 586, 12 Sup.Ct. 759, 36 L.Ed. 552; Furrer v. Ferris, 145 U.S. 132, 12 Sup.Ct. 821, 36 L.Ed. 649. In Judge Clarke's opinion confirming the master's report that officer is referred to as 'an experienced lawyer and longtime common pleas judge of Cuyahoga county, Ohio,' and presumably the appointment was made by reason of the special fitness of the appointee. The evidence was voluminous and intricate, involving the testimony of a large number of witnesses and many exhibits. The record indicates that the master performed his duties with painstaking care and fidelity; the judge stating in his opinion that the master 'spent more than 30 days listening to the testimony introduced, heard elaborate oral arguments, and considered written arguments, which, although called 'briefs,' are several hundred pages in extent. ' Numerous exceptions were taken to the master's report, and the judge re-referred the case to that officer for fuller and more detailed report of his findings of fact and conclusions of law, 'with reference to the pages of the testimony upon which the findings of such fuller report shall be based. ' While the exceptions were overruled, as not presented in the required form, yet the court examined their merits 'as fully as if they had been properly presented' for consideration. Judge Clarke expressly says that he has 'gone very carefully through this voluminous record, and is satisfied that the special master was amply justified, considering the conflict of testimony before him, in reaching the conclusion which he reports,' and without regard to the rule of presumption in its favor. These facts emphasize the force otherwise given to the findings below. Wabash Ry. Co. v. Compton (C.C.A. 6) 172 F. 17, 21, 96 C.C.A. 603.

Turning to the fundamental and meritorious questions on which the decision below was made to rest:

1. We cannot declare unjustified a conclusion that plaintiff was equitably entitled to a month's extension of time for completing its contract, on account of delays occasioned by circumstances not reasonably within its control. The delays at the rolling mills and in the engineer's office have already been referred to. True, there was criticism of plaintiff's method of 'picking-off' from the drawings and ordering from the mills as creating unnecessary delay; but there was competent testimony that such practice was proper and expeditious. It does not necessarily follow that plaintiff was at fault in not more closely following the rolling mills' schedules, nor is absence of fault on the part of the rolling mills necessarily conclusive that the delay was within plaintiff's reasonable control. There was also criticism of plaintiff's practice in fabricating at its shop at one time, as far as possible, all of certain like members throughout the building, instead of first fabricating materials for each wing, in the order of erection; but the master found this method of fabricating proper, and we see no reason to reject his conclusion. There was also criticism that some of the delay was caused by imperfect fabricating and by an asserted improper and inconvenient piling of materials at the building site; but there was testimony that some of the steel shipped from the rolling mills was so bad that it had to be knocked to pieces, and that representatives of defendant's engineers actually inspected at plaintiff's factory all the various fabrications alleged to have been defective, and while such inspection and approval did not necessarily forbid rejection of the defective work before its erection in the building, it had a tendency to mitigate delay on plaintiff's part occasioned thereby. The asserted improper method of piling does not seem to have been of controlling importance.

Article 7 of the contract, however, provides that, if plaintiff should 'be delayed in the prosecution or completion of the work, delay due to rolling mills, by the act, neglect or default of the owner, upon the work, or by any damage caused by fire * * * or other casualty for which the contractor is not responsible, or by strikes or lockouts caused by acts of employes, then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all the causes aforesaid. ' The language above quoted is followed by this clause 'which extended period shall be determined and fixed by the engineers; but no such allowance shall be made unless a claim therefor is presented in writing to the engineers within forty-eight hours of the occurrence of such delay;' and article 12 provides that in case either party to the contract dissents in writing within 10 days from the decision of the engineers referred to in article 7, the matter shall be referred to a board of arbitration, to be made up as provided therein. This provision was not complied with; and defendant urges that plaintiff is, for the purposes of this...