Kelley v. Emery

• Decision Date: 14 June 1889
• Citation: 75 Mich. 147,42 N.W. 795
• Court: Michigan Supreme Court
• Parties: KELLEY ET AL. v. EMERY ET AL.

42 N.W. 795

75 Mich. 147

KELLEY ET AL. v. EMERY ET AL.

Supreme Court of Michigan

June 14, 1889

Error to circuit court, Bay county; COBB, Judge.

LONG J.

This is an action of assumpsit brought to recover the balance claimed by plaintiffs to be due them under a written contract for building a schooner for defendants at Bay City and for extra work and material thereon. On the trial in the court below the plaintiffs had verdict and judgment for the sum of $224.78. Defendants bring error.

Under the contract the vessel was to be delivered in the water on or before April 15, 1887. The full price for the building of the vessel was to be $1,800. It is conceded that prior to the commencement of the suit the defendants had paid to plaintiffs the full contract price, less $174.78; and the action was brought to recover this sum under the contract and also to recover $100 for extra work and material in making a bilge-strake half an inch thicker than the contract required. The declaration was on the common counts in assumpsit, with a bill of particulars, claiming the $174.78 under the contract, and the $100 for extra work and material for the bilge-strake not provided for in the contract. The defendants, with their plea of the general issue, gave notice of several matters of defense, as defective construction of the schooner, and also that the same was not completed on April 15, 1887, nor did plaintiffs ever complete it, but threatened to keep the same on the stocks until July thereafter, doing a trifling amount of work each day; and defendants were compelled to lay out large sums of money in order to make the same seaworthy and fit for use. These damages defendants claimed in said notice to recoup on the trial. The defense was that the vessel was unseaworthy when delivered to defendants, and that they were compelled to pay out this $174.78 kept back from plaintiffs upon her, in order to make her seaworthy, and that they were not liable for the extra work done by plaintiffs in putting on the bilge-strake. Defendants also claimed damages at the rate of five dollars for each working day beyond the time when the vessel should have been completed by plaintiffs, that being claimed as the value of the use of the vessel. Defendants also claimed damages by way of recoupment for the difference in the value of the vessel as she was constructed by plaintiffs, and what she would have been worth if constructed in a workman-like manner. On the trial plaintiffs gave testimony tending to show that defendant Donohue took charge of and looked after the work of building the vessel, and that they followed his directions; that Donohue went to the ship-yard, and selected the timber and planks for the vessel, gave directions about its construction, and that they followed the instructions given by him in building her; and that while the contract only called for 2 1/2-inch plank, under Donohue's direction they put on 3-inch. Plaintiffs also gave evidence tending to show that the vessel was launched and delivered in the water April 16th, and that the first load hauled by her was stone and that the extra work on her was worth $100. Plaintiffs also claim that work was done on the vessel by them after she was launched that could not have been done before. The defendants put in evidence a receipt from C. Wheeler, who owns the dry-dock, showing a payment to him by the defendants on June 24, 1887, of the $174.78, which they kept back from the contract price. This was made up of the following items:

Docking ........................................... $ 30 00

136 lbs. oakum ...................................... 20 40

1 3/4 days for a man, $8.75; 55 ft. oak, $1.65 ...... 10 40

75 lbs. tallow, $7.50; 32 1/2 days labor, $96.75 ... 104 25

35 lbs. spikes, $1.75; 8 lbs. iron, 32 cents ......... 2 07

50 lbs. paint, $4.00; 22 ft. decking, 66 cts ......... 4 66

Blacksmithing ........................................ 3 00

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$174 78 Testimony was given by defendants showing this work was worth the prices charged, and that the work was necessary to make the vessel seaworthy. Testimony was also given tending to show that the putting on of the bilge-strake was not worth the amount charged, Defendants also gave evidence tending to show that the difference in value between the vessel as built and the vessel as it was to be built under the contract would be from three to five hundred dollars. Defendant Donohue was called as a witness, and gave evidence tending to show that plaintiffs did not do the work according to the contract; that the vessel was not properly caulked, and that inferior material was used; that the planking was not driven up to the frames, and had to be cut out; that plaintiffs worked upon her to June 1st; defendants then took her, and went to Grindstone city for stone; that the vessel would carry 24 to 25 cords of stone, 140 tons, but that they only put on 21 cords properly stowed, and while being loaded she began leaking through her seams, which were not properly caulked; that she leaked a stream as large as...