Gate City Malt Co. v. Stewart

• Decision Date: 30 June 1913
• Docket Number: 3,885.
• Citation: 206 F. 448
• Parties: GATE CITY MALT CO. v. STEWART et al.
• Court: U.S. Court of Appeals — Eighth Circuit

206 F. 448

GATE CITY MALT CO. v. STEWART et al.

No. 3,885.

United States Court of Appeals, Eighth Circuit.

June 30, 1913

Frank H. Gaines, of Omaha, Neb. (McGilton, Gaines & Smith, of Omaha, Neb., on the brief), for appellant.

Seneca N. Taylor, of St. Louis, Mo. (S. C. Taylor, of St. Louis Mo., on the brief), for appellees.

Before SANBORN and CARLAND, Circuit Judges, and WILLARD, District judge.

CARLAND Circuit Judge.

This action was brought to foreclose a mechanic's lien. A decree of foreclosure was granted, and defendant appeals. There are only two assignments of error argued in the brief. They are stated by counsel for appellant as follows:

'1. The evidence shows that the plaintiff and its agents did not locate and construct the pier holes upon which the iron pillars rest in accordance with the plans and specifications, but wrongly located the pier holes, and then enlarged the same beyond the size called for in the plans, with the result that the columns thus wrongly located settled unevenly, causing cracking of the floor of the attemperator room and uneven settlement of the piers with respect to each other and the walls of the building and that such action was willful and deliberate upon the part of the plaintiff, to the great damage of the defendant.

'2. That plaintiff and its agents were directed in the location of the walls of the building to go to yellow clay or solid ground, but that instead of so doing the north walls of the building in controversy rest upon soft or yielding ground, whereby, in order to repair the damage, it is necessary to reconstruct the building.'

The claim for a lien arose out of the performance of a contract entered into August 27, 1906, whereby the appellees agreed with appellant to furnish the materials and perform all the work for the erection and completion of a malting plant on a parcel of land situated in South Omaha, Neb. The malting plant was to be erected in accordance with plans and specifications prepared by the Saladin Pneumatic Malting Construction Company. Article 2 of the contract contained this provision:

'It is understood and agreed by and between the parties hereto that the work included in this contract is to be done under the direction of the said owner.'

Thomas Kimball, an architect, was superintendent of the construction of the malting plant and represented the owner and appellant. One Heckman, who was in immediate charge of the work represented Kimball. Otto Luebkert, who was in the employ of the malting construction company, prepared the plans for the malting plant, which plans were a retracing of plans prepared for a malting plant...