Fraternal Const. Co. v. Jackson Foundry & Machine Co.

• Decision Date: 14 November 1905
• Citation: 89 S.W. 265
• Parties: FRATERNAL, CONST. CO. v. JACKSON FOUNDRY & MACHINE CO.
• Court: Kentucky Court of Appeals

89 S.W. 265

FRATERNAL, CONST. CO. v. JACKSON FOUNDRY & MACHINE CO.

Court of Appeals of Kentucky.

November 14, 1905

Appeal from Circuit Court, McCracken County.

"Not to be officially reported."

Action by the Fraternal Construction Company against the Jackson Foundry & Machine Company. From a judgment for defendant plaintiff appeals. Affirmed.

Hal. S Corbett and Bloomfield & Crice, for appellant.

Campbell & Campbell, for appellee.

BARKER J.

The appellant, Fraternal Construction Company, contracted with the appellee, the Jackson Foundry & Machine Company to furnish it with an iron front for the first story of a two-story brick building it proposed to erect in Kevil, Ky. The latter company, of necessity, knew the purpose for which the front was to be manufactured, and agreed that it should be of sufficient size, quality, and strength to resist the weight to be imposed upon it by the building for which it was constructed; but it was only to manufacture and deliver the front--not to put it in place. In pursuance of the contract appellee manufactured and delivered the iron front to the appellant company, which put it in place in the building it was engaged in erecting. After the walls of the second story were about completed, as to height, but before they were in any wise anchored or made fast at the top, the whole building collapsed and fell into a complete mass of wrecked debris. About 60 feet in depth of the walls of the building fell. After the collapse it was found that the lintel of the iron front was broken in two, as was also one of the three upholding columns.

Appellant believing that the collapse of the building was occasioned by defects in the front furnished it by appellee, instituted this action in the McCracken circuit court to recover as damages the cost of the building at the time it was destroyed, which was laid at $1,500. After setting forth the facts as to the contract, which we have substantially given above, the petition alleged that the iron front was defective, in that it had large holes in it, which had been carefully concealed by filling with some soft metal, such as lead or babbitt, and the surface painted over so as to entirely conceal the defects, and make it impossible for the appellant company to ascertain in advance its weakness; that believing it to be in accordance with the terms of the contract between it and appellee, it had put the front in place, and erected upon it the second story of its building; and that by reason of the defects in the iron it was unable to sustain the weight which it had been purchased to uphold, and, breaking under it, had caused appellant's building to collapse and fall. All of the material allegations of the petition were placed in issue by the first paragraph of the answer, and in the second a counterclaim was set up for the contract price of the iron front, which was alleged to be $94.35. A trial of the case before a jury resulted in a verdict for the appellee (defendant) as prayed in the answer, to reverse the judgment predicated upon which appellant prosecutes this appeal.

The question between the parties litigant is largely one of fact and this issue lies within a very narrow compass. There is no dispute that the appellee company agreed and undertook to furnish an iron front of such dimensions and quality of material as would support a two-story building, and there is no serious question in the record that the dimensions were sufficient (if the material was not defective) to perform the...