Hoggson Bros v. First Nat Bank, of Roswell

• Decision Date: 28 February 1916
• Docket Number: 4433.
• Citation: 231 F. 869
• Parties: HOGGSON BROS. v. FIRST NAT. BANK OF ROSWELL.
• Court: U.S. Court of Appeals — Eighth Circuit

231 F. 869

HOGGSON BROS. v. FIRST NAT. BANK OF ROSWELL.

No. 4433.

United States Court of Appeals, Eighth Circuit.

February 28, 1916

Rehearing Denied May 4, 1916.

Selden Bacon, of New York City, for plaintiffs in error.

James M. Hervey, of Roswell, N.M. (William C. Reid, of Roswell N.M., on the brief), for defendant in error.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

CARLAND Circuit Judge.

Hoggson Bros., hereinafter called plaintiff, sued the First National Bank of Roswell, New Mexico, hereinafter called the Bank, to recover for services rendered and expenses disbursed in connection with four alleged contracts, dated April 21, 1906 June 22, 1907, August 24, 1907, and December 8, 1908. A jury was waived and the action tried by the court. Special findings of fact were made, upon which judgment was rendered in favor of the Bank. Plaintiff brings the case here assigning as error that on the facts found the judgment should have been in its favor.

The trial court found,, and in which finding we concur, that the three first contracts were all merged into the contract of December 8, 1908, and that plaintiff must recover on that contract, if at all. It also ruled that there was no breach of said contract on the part of the Bank, for the reason that the plaintiff was the first to breach the contract, thereby justifying the Bank in refusing to perform the same. In the contract of December 8th, the plaintiff agreed to construct for the Bank a new bank and store building at Roswell, N.M and to furnish all architectural services, including sketches, plans, drawings, specifications, labor, and material for $70,000. The contract also contained the following stipulation: 'We agree to allow you the privilege of canceling the order at any time before the work is begun, and, in the event of our not going on with the work, to accept as our remuneration a sum based on the schedule of charges endorsed by the American Institute of Architects.'

The twenty-fourth finding of the trial court is as follows:

'Up to its writing the said letter of January 25, 1909, the plaintiff fully and in all respects kept and performed all terms, conditions, and provisions of each and all its said agreements with the defendant; and at no time prior to the receipt of the defendant's letter of the 16th day of February, 1909, failed in any way to perform any of said terms, conditions, and provisions of any of said agreements, save and except by sending the said letter of the 25th day of January, 1909.'

The correspondence between plaintiff and the Bank, which the trial court found as a conclusion of law constituted a refusal by the plaintiff to perform the contract, is as follows:

'New York, Jan. 25/09.

'E. A. Cahoon, Cashier First National Bank, Roswell, New Mexico-- Dear Sir: We acknowledge receipt of yours of the 18th, and the writer believes he understands what your requirements are. Our difficult problem is to include in our plans, sketches, specifications, details, and samples everything that we know you would like for the limited amount of our order. When writer was in Roswell, you will recall that he brought with him the details complete for the order for $50,000 you had previously signed, and you were of course aware that, until those details were worked out, figured, submitted to, and accepted by you, nothing was settled but the limit of expenditure. You will also recall that, when you broached the subject of a new building, I told you it would cost $70,000 to $75,000, and supposed, of course, you would understand that by a guess of mine-- varying $5,000-- it was very clear that I could not tell whether or not the amount would include everything required.

'There is no question but that $70,000 will give you a bank building, boiler house, and store; but we have worked out this proposition faithfully, and the bids we have received confirm our own figures, and if you desire the interior of your banking room furnished and equipped as per the details submitted, to build the construction work so that it would be in keeping will require an expenditure as specified in our estimates, and if you insist on building it to keep the cost within $70,000 we would prefer not to do the work. The profit in it is very small; there is no way for us to increase it. If the cost by any means is decreased, the bank makes the saving; we don't, and we would not care to start a job that we were not sure would be a satisfactory one to all concerned.

'We cannot feel that we have misled you in any way, or led you into anything not plainly stated beforehand. You will find that, on the signing of each order, details were referred to each time that were to be submitted and approved, and nothing was settled until they were approved. We are not responsible if you change your requirements. We do not become responsible until we have the designs and drawings made, duly estimated, and have submitted all the details which we can include for the amount of the order. If these details are satisfactory, we are ready to proceed, and your acceptance of them makes the contract complete; if they are not, they have to be adjusted until they are, if possible. If not possible to include all the items wanted by the owner in the appropriation, in a quality of material and workmanship that we will be responsible for, the owner has the privilege of cancellation as provided in the contract.

'You have the details in full-- everything I believe that can be submitted to produce your work. We have carefully estimated every item, and the figures given you we know are lower than any one else can give you the same thing for. There is no question of further expense. You know beforehand every time just what the limit is. You must not think, however, that we can work into an appropriation work that costs to execute much in excess of same. We cannot do the impossible.

'Where your misunderstanding occurred was in your taking it for granted that the amount of our order would do anything required. We had twice gone through the same thing before, and again started on exactly the same proposition, which was to see if the appropriation of $70,000 (the amount of our order) would do what you wanted done, and it is in keeping with the principle of this house that, believing a mistake would be made if an operation were attempted with an insufficient appropriation, to tell you so frankly and take a cancellation, rather than deliver a disappointment to one of our customers. Perhaps you do not realize that we have an allowance to move you into the new store, fit you up, furnish you with a temporary banker's safe-- fireproof-- and that, did we not feel that it was absolutely necessary, we would not ask for a cent over $70,000.

'I am convinced that, if the bank tries to put up the three buildings and furnish the bank up to the value we have been figuring on, or $70,000, the result will be a disappointment, and we prefer to take the cancellation rather than a job with not enough appropriation to do it well. You have all the details of what we

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