Fisher v. Edgefield & Nashville Mfg. Co.

• Decision Date: 19 December 1900
• Citation: 62 S.W. 27
• Parties: FISHER v. EDGEFIELD & NASHVILLE MFG. CO. et al.
• Court: Tennessee Supreme Court

62 S.W. 27

FISHER v. EDGEFIELD & NASHVILLE MFG. CO. et al.

Court of Chancery Appeals of Tennessee.

December 19, 1900.

Appeal from chancery court, Franklin county; T. M. McConnell, Chancellor.

Suit by Otto E. Fisher against the Edgefield & Nashville Manufacturing Company and others. From a decree for complainant, the defendant the Edgefield & Nashville Manufacturing Company appeals. Affirmed.

Wilkins & Chamberlain and Geo. E. Banks, for appellant. Lynch & Lynch and W. L. Myers, for appellee.

BARTON, J.

This is a suit filed to collect the balance alleged to be due for work and labor done for the defendants upon a building known as the "Hoffman Dormitory," erected upon the premises of the University of the South, at Sewanee. The defendant the Edgefield & Nashville Manufacturg Company was the original contractor with the University of the South, and had undertaken to erect the building in question. The complainant was a subcontractor under the Edgefield & Nashville Manufacturing Company for certain parts of the work. Certain parts of the work done by complainant were done under a contract at a fixed price, and he claims that he did extra work in addition to the amount of several hundred dollars. His account is itemized, and set out as an exhibit to his bill, and he claims a balance of $1,566.97, and also claims that this is a lien upon the property of the defendant the University of the South, and alleges proper notice and so on. The defendants jointly answer, and claim that there is nothing due the complainant. They claim that the complainant failed to comply with his contract in several respects, thereby causing delay and damage, for which they are entitled to recover. They set out in their answer items of damage to the amount of $1,056, and they deny that the work claimed as extra by the complainant was extra. Proof was taken, and the cause heard, and the chancellor decreed that the complainant was entitled to recover the amount sued for by him, $1,566.97, with interest; that the defendant Edgefield & Nashville Manufacturing Company was not entitled to any set-off for damages on account of the alleged delay and failure on the part of the complainant. The recovery was declared a lien upon the property described in the bill. From this decree the Edgefield & Nashville Manufacturing Company prayed and has perfected an appeal, and assigned errors.

The first assignment of error is that the chancellor erred because the proof shows that the contract of the Edgefield & Nashville Manufacturing Company covers all the work that the complainant claims as extra in his account. The contract between the parties was as follows: "Sewanee, Tenn., Aug. 1, 1898. This contract, entered into this day between the Edgefield & Nashville Mfg. Co., of Nashville, Tennessee, and Otto E. Fisher, Sewanee, Tennessee, witnesseth that the said Otto E. Fisher agrees and binds himself to furnish labor and materials to fully complete all of the stonework, including the foundation and ashler work, sills, lintels, coping steps up, and including water tables, also all of the brickwork for the basement story (all to be fully executed according to the plan and specifications of R. H. Hunt, architect, New York, for the University of the South); one Hoffman dormitory, for the sum of $3,400. Also witnesseth that he agrees to do and lay all brickwork necessary to fully complete all the brickwork, except paving, in the basement of the building, according to the plans and specifications, and to furnish all sand, cement, and labor to execute same, fully in accordance with specifications and instructions on the same, for the sum of $1,400, the party of the first part, Edgefield & Nashville Mfg. Co., to furnish all necessary brick to complete the said contract; and further covenant to finish the foundation proper, not including steps, coping, and area walls, in five weeks, or by Sept. 15, 1898, and balance of the stonework by Oct. 1, 1898, or sooner, if possible."

The complainant, as an exhibit to his bill, sets out extra items, amounting in the aggregate to $1,152.12. The chancellor found and adjudicated that these were extras, and were not covered by the contract. In this finding we concur. The first item in this bill was to extra foundation, 155 yards and 12 feet, at $2.50 a foot, aggregating $544.05. The contract was that this foundation work was to be fully executed according to plans and specifications of R. H. Hunt, architect, New York, for the University of the South. The plans were not filed, but were shown to be in the possession of the defendants, and that the attorneys of the complainant had tried to get them and file them. But, while the plans are not filed, the proof shows that, while the specifications did not name t depth of the foundation, the plan showed a depth of 12 feet. It was upon this estimate of 12 feet that the original contractor bid, and the subcontractor, the complainant, bid. One of the witnesses for the defendant, Mr. Wiggin, proved that the plans showed only a depth of about 12 feet, but says, "When we made our excavation, we discovered that we would not strike rock within the 12 feet, and therefore in some places we had to go down about 3 or 4 feet more, inasmuch as we always build our foundation on solid rock." Mr. Wiggin, who represented the University of the South in the matter, further stated: "Nothing was ever said about the foundation in excess of twelve feet in any conversation that I ever had with the E. & N. Mfg. Co., although, as this extra foundation was not included in the plans and specifications, I certainly expected to pay for the excess as extra, and the statement of the E. & N. Mfg. Co. makes a claim against the university for this extra;" and he proves that the University of the South paid the Edgefield & Nashville Manufacturing Company as extra for this very work the sum of $588.15, or $44 in excess of the amount charged by the complainant. So we find as a fact that there was extra work done on the foundation by the complainant, that the amount charged for is correct and the price correct, and that the defendant Edgefield & Nashville Manufacturing Company received from the University of the South pay for the same to the amount of $588. It is therefore clear that the complainant is entitled to collect this amount. It also appears in the proof, and we are satisfied, that the manager of the Edgefield & Nashville Manufacturing Company told the complainant to keep an account of this extra stonework. The original contract between the University of the South and the Edgefield & Nashville Manufacturing Company, and the subcontract between the Edgefield & Nashville Manufacturing Company and complainant, Fisher, both call for building the foundation in accordance with the plans and specifications. So this item appears to us to be too plain for controversy or need further comment.

The next item was for extra brickwork on top of the wall behind the cornice, for which complainant charges $208. That this work was done is not disputed, and the amount charged is shown to be reasonable. But the insistence is that it was included in the contract, and the complainant was bound to do the work under his contract, and cannot charge for it as an extra. The provision of the contract relating to the work is that he (Fisher) "agreed to do and lay all brickwork necessary to fully complete all brick, except paving, in basement of the entire building, according to plans and specifications, and to furnish all sand and cement and labor to execute the same, fully in accordance with the specifications and the instructions of the same, for the sum of $1,400." As stated above, neither the original plans nor copies of the same were produced, although it is shown the defendants had or should have the original plans. A copy of what is said to be a copy of the original specifications is produced, as also a copy of the original contract entered into between the Edgefield & Nashville Manufacturing Company, the original contractor, and the University of the South. This contract is found in the transcript, and is here referred to and made a part of this opinion. We need, though, as we think, only refer to parts of the same. The original contract to the subcontractor provides for the doing of the work according to the plans and specifications, though the original contract between the University of the South and the Edgefield & Nashville Manufacturing Company has this sentence: "All the work included in the plans and specifications as per instructions, as follows;" and then follow certain provisions, such as these: "Walls to be broken ashler outside, and backed up with brick on the inside to thickness of two feet in cellar, and twen-one inches above the basement, the cornices to be galvanized iron, and hard plaster to be used, no plumbing, mantels, grates, or hearths included, agreeable to the drawings and specifications made by the architect and signed by the parties thereto, copies of which have been delivered to the contractor, and to the dimensions and explanations thereon, therein, and herein contained, according to the true intent and meaning of said drawings and specifications and of these presents, including all labor and materials incident thereto, and shall provide all scaffolding, implements, and cartage necessary for the due performance of the said work. (2) Should it appear that the work hereby intended to be done, or any of the matters relative thereto, are not sufficiently detailed or explained on the said drawings, or in the said specifications, the contractor shall apply to the architect for such further drawings or explanations as may be necessary, and shall conform to the same as part of this contract, so far as they may be consistent with the original drawings, and, in the event of any doubt or question arising respecting the true meaning of the drawings or specifications, reference shall be made to the architect, whose...