Hickok v. W.E. Adams Co.

• Decision Date: 05 April 1904
• Citation: 99 N.W. 77,18 S.D. 14
• Parties: HICKOK v. W. E. ADAMS CO.
• Court: South Dakota Supreme Court

99 N.W. 77

18 S.D. 14

HICKOK v. W. E. ADAMS CO.

Supreme Court of South Dakota

April 5, 1904

Appeal from Circuit Court, Lawrence County.

Action by Herbert D. Hickok against the W. E. Adams Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

McLaughlin & McLaughlin, for appellant.

HANEY J.

The parties to this action entered into a written contract whereby the plaintiff was to furnish all labor necessary, and to complete, in a good and workmanlike manner, the entire steam-heating plant of defendant's new building in Deadwood, on or before July 15, 1899; defendant was to provide Wilks heater, hot-water tank, steam boiler smokestack, and setting of boiler; all other material was to be furnished by the plaintiff, and boiler set ready for connections by July 1st. It was expressly stipulated than if the plaintiff failed to comply with the conditions of the contract the defendant should have the right to employ men procure material, and complete the job at the plaintiff's expense; that the plaintiff should forfeit $5 for each day that the contract remained incomplete after the date above specified; and that any delay in the completion of the contract, caused by the act or negligence of the defendant in not having the boiler, Wilks heater, and tank ready when wanted, should be compensated for at the same rate per day after the date set for the completion of the job. Plaintiff alleges that the defendant failed to have the boiler set and ready for connections until October 5th, and thereby delayed the plaintiff in completing his contract until October 18th; that, if defendant had complied with the contract on its part, the plaintiff would have completed the contract on or before July 15th, "but by reason of the failure of the defendant to comply with the provisions of said contract on its part, as before alleged, the plaintiff lost and was delayed for the period of 95 days, through no fault on his part, and that during all of said time the plaintiff was prevented from taking other work, as he was compelled to hold himself in readiness to complete his work for defendant when the work of defendant required by the terms of said contract should be completed by it; and that the reasonable value of plaintiff's services during the time he was delayed by the wrongful act of the defendant is $475," in which sum he has been damaged. Defendant admits making the contract, admits it did not have the boiler ready for connections on July 1st, but alleges that it was ready on September 30th, and that the plaintiff failed and neglected from October 14th to December 8th to complete the contract, whereby defendant was damaged in the sum of $500. This alleged delay on the part of the plaintiff is denied in the reply. The jury returned a verdict for the plaintiff against the defendant for $205. Judgment was entered accordingly, and defendant appealed therefrom, and from an order denying its application for a new trial.

Upon the trial the plaintiff, sustaining the allegation of damages in his complaint, confined himself solely to the number of days lost by him between July 1st and October 18th, and testified that the value of his services...