Interstate Engineering Co. v. Archer

• Decision Date: 23 August 1911
• Citation: 117 P. 470,64 Wash. 629
• Parties: INTERSTATE ENGINEERING CO. v. ARCHER et al.
• Court: Washington Supreme Court

117 P. 470

64 Wash. 629

INTERSTATE ENGINEERING CO. v. ARCHER et al.

Supreme Court of Washington

August 23, 1911

Department 1. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by the Interstate Engineering Company against John F. Archer and C. A. Conant, as copartners doing business as John F Archer & Co. From a judgment for defendants, plaintiff appeals. Affirmed.

Poindexter & Moore and Richard G. Hutchinson, for appellant.

Danson & Williams, for respondents.

MOUNT, J.

The plaintiff brought this action to recover an alleged balance of $1,048.18 on account of structural iron and steel furnished to defendants upon their order. The complaint alleged: That on December 7, 1908, defendants entered into a written agreement for the purchase of iron and steel, as follows: 'Spokane, Wash., December 7, 1908. John F Archer & Co., City--Gentlemen: We are entering your order today, subject to the approval of the Interstate Engineering Co. of Cleveland, Ohio, for the steel material for the highway bridge at Kamiah, Idaho. This material to be furnished you at a price of $4.33 per hundred f. o. b Kamiah, Idaho, same to be fabricated and ready for erection according to B/P's and according to specifications of the American Bridge Co. for light 'C' type of highway bridge. The price quoted is determined as follows: $3.00 per hundred for the fabricated steel material f. o. b. Bedford, Ohio, and $1.33 per hundred freight from Bedford to Kamiah, Idaho. There shall be furnished with this fabricated material enough take-up bolts and rivets for erection in the field. There shall not be a variation in weights between the shop weights of the Interstate Engineering Co. and the weights of the Railroad Company of over 2%. Any variation in freight rate at the time of shipment shall be assumed by consignee. All material to be shipped in full carloads so that same will be figured at carload rates. Terms of payment to be as follows: draft for 80% of the contract price to be made on John F. Archer & Co. through the Spokane and Eastern Trust Co. of Spokane, attached to bill-lading; balance to be in two equal payments of 30 and 60 days each. We are sending you, under separate cover, corrected copy of B/P which you will use in connection with the specifications of the American Bridge Co. for this work. Yours very truly, Wright & Bell, By A. L. Wright. Accepted Dec. 7-08. John F. Archer & Co.' That in accordance with this contract plaintiff delivered to defendants 174,698 pounds of steel and iron, which defendants accepted and received. That the total price was $5,240.94, of which defendants paid $4,192.76, leaving a balance due of $1,048.18. The answer of the defendants admitted that they entered into a contract with the plaintiff prior to the date of the letter above set out, and that the letter was delivered to them on the date it bears. That plaintiff furnished 140,000 pounds of steel and iron for the construction of the bridge referred to, and that defendants paid plaintiff $4,192.76, but denied all the other allegations of the complaint.

And as an affirmative answer and counterclaim defendants alleged that on October 7, 1908, they had a contract to construct a bridge across the Clearwater river at Kamiah, Idaho, and plaintiff, knowing that fact, solicited an order from defendants for the iron and steel necessary to construct the said bridge; that defendants and plaintiff on November 1, 1908, entered into such contract, whereby plaintiff agreed for the price of three cents per pound to furnish all the iron and steel bolts and rivets for said bridge, all of such material to be shipped by plaintiff to defendants at Kamiah, Idaho, and the plaintiff agreed to ship said material within a reasonable time, and not to exceed thirty days after the date of the contract; that plaintiff knew that defendants were engaged in constructing said bridge, and that the iron and steel would be required within six weeks from the date of the contract; and that, unless the material was delivered within said time, defendants would have to suspend work on such bridge; that plaintiff also knew that certain falsework was necessary in the bed of the river preparatory to receiving the steel, and that the river reached flood stages in the months of February, March, April, and May of each year, and that, unless such iron and steel reached it in time to be put in place before highwater, such falsework would be carried away, and defendants would suffer great loss thereby; that a reasonable time for shipping said steel did not exceed three weeks from the date of the agreement, and that if plaintiff had shipped said material within a reasonable time, or within 30 days as it agreed, the bridge would have been completed before high water; that in making the contract defendants relied wholly upon the promise of the plaintiff to ship said materials within a reasonable time, and not to exceed 30 days; that plaintiff delayed and refused to ship such materials within a reasonable time or within 30 days, and defendants repeatedly urged plaintiff to carry out its contract, and plaintiff promised to do so, but, notwithstanding such promises, failed to ship any of such material until June 29, 1909, when a portion thereof was shipped, and the remainder was shipped several weeks later; that by reason of such delay the falsework placed in the river by defendants was washed away by the flood waters and lost, to defendants' damage in the sum of $4,184.45; that the flood water which caused the damage did not occur until after the defendants could have completed said bridge, if plaintiff had complied with its agreement and furnished said materials within a reasonable time. The plaintiff demurred to the affirmative matter and cross-complaint,...