Humphrey v. Flaherty
| Decision Date | 08 July 1916 |
| Docket Number | 20,306 |
| Parties | GEORGE W. HUMPHREY, Appellee, v. M. E. FLAHERTY, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1916.
Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CONTRACTS -- Breach -- Building Contract -- Default of Builder -- Estoppel. A builder can not avail himself of a provision in a contract providing for a penalty of a certain sum per day for the failure of a contractor to complete the work on the day fixed where the delay has been occasioned by his own acts and defaults.
2. SAME--Building Contract--Partial Payments--Waiver. A provision in a building contract that payments shall be made to the contractor as the work progresses and when it is completed upon certificates issued by an architect may be waived, and a finding by the trial court herein that the issuance of certificates provided for in the contract had been waived by the parties is upheld.
James A. Troutman, of Topeka, for the appellant.
H. W. Euler, T. F. Garver, and R. D. Garver, all of Topeka, for the appellee.
George W. Humphrey brought this action against M. E. Flaherty to recover a balance due under a written contract by which the plaintiff was to receive $ 2500 for remodeling and constructing a house for the defendant and he recovered a judgment for $ 361.64 from which the defendant appeals.
In the contract, February 1, 1912, was named as the time for completing the building, and it was provided that the plaintiff should forfeit $ 5 per day for any delay in the completion after that date. It was also provided that payments should be due when certificates of the architect were issued. In his appeal the defendant insists that the trial court erred in not making any allowance for plaintiff's delay in the completion of the house, and he further insists that the plaintiff was not entitled to judgment because the work was not done according to the contract and certificates had not been given by the architect. The work was not completed until about two months after the time fixed in the contract for completion. The plaintiff claimed that the penalty provision was waived by the defendant, who was placing a large boiler in the basement and the foundation walls had to be left open some time for that purpose, and also by requiring the doing of extra work such as the deepening of the cellar, the building of attic stairs, putting in attic windows and making window and door screens. Another reason assigned for the delay was the extreme cold during a part of the winter while the work was going on which interfered with the building; but that is a contingency against which the plaintiff might have provided in his contract. The testimony, however, is that the acts and defaults of the defendant mentioned occasioned delay. It is well settled that if an owner by his own act and default prevents the...
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Steffek v. Wichers, 46564
...it has recognized the doctrine of waiver, and has applied it in connection with an architect's final certificate in Humphrey v. Flaherty, 98 Kan. 634, 158 P. 1112. The building contract there required that payments should be made to the contractor as the work progressed, and when it was com......