E.L. Garrettson & Co. v. Rinehart & Dennis Co.
| Decision Date | 23 February 1915 |
| Docket Number | 2640. |
| Citation | 84 S.E. 929,75 W.Va. 700 |
| Parties | E. L. GARRETTSON & CO. v. RINEHART & DENNIS CO. |
| Court | West Virginia Supreme Court |
Submitted February 3, 1915.
Rehearing Denied April 20, 1915.
Syllabus by the Court.
A contractor having the alternative right, under his subcontract, in case of default in the prosecution of the work thereunder, to take full and complete possession of the work and the subcontractor's tools and machinery and use the latter in the completion of the work, at the expense of the subcontractor, after having given notice in writing of his intention so to do, or to put on additional men, leaving the work in the hands of his subcontractor, does not exercise the former right by the mere putting on of additional men slight alteration of the method of work, without objection from the subcontractor, and payment of their wages directly to the men after having previously found it necessary to guarantee their wages by reason of delay in payment by the subcontractor, at the same time requesting co-operation on the part of the subcontractor. His procedure is the exercise of the latter right, notwithstanding a reference to the other in a telegram giving notice thereof.
Abandonment of the work by the subcontractor, after such procedure authorizes the principal contractor to take full possession of the work, machinery, tools, and appliances, and use the latter in the completion of the work, for and on account of the subcontractor, crediting him with the contract prices of the work, as it is performed, and charging him with the cost thereof. Such use of his machinery and appliances is not a conversion thereof.
In an agreement between a contractor and his subcontractor for the rental by the former to the latter of machinery and appliances already on the ground at the date of the contract for use in execution of the work sublet, there is no implied warranty of the fitness of the machinery for such work, nor any implied undertaking on the part of the principal contractor to repair defects therein.
Error to Circuit Court, McDowell County.
Action by E. L. Garrettson & Co. against the Rinehart & Dennis Company. Judgment for defendant, and plaintiffs bring error. Affirmed and remanded.
Walton O. Bowers, and Anderson, Strother & Hughes, of Welch, for plaintiffs in error.
Stokes & Sale, of Welch, for defendant in error.
The loss of a verdict for $15,000 found and returned as damages for an alleged breach of a contract for railroad construction work and the award of a new trial constitute the complaint on this writ of error.
Having obtained a contract from the Norfolk & Western Railway Company for the grading, masonry, and tunnel and trestlework required for its roadbed between certain mileposts at Vivian, W. Va., covering a distance of 2.70 miles, the Rinehart & Dennis Company, a corporation, sublet the work to E. L. Garrettson & Company, after having performed a portion of it. It consisted principally of bridge and tunnel work. The tunnel was something like 600 or 700 feet long, and the principal contractor reserved to itself the work of driving it through the hill. The subcontract included all of the concrete work to be done, the completion of the bridge work, the tunnel portals and tunnel lining, consisting, for the most part, of excavation and concrete work. The subcontractors obligated themselves to complete the work by September 1, 1911, and commence it within ten days after the date of the contract, February 18, 1911. In so far as they were applicable to the work sublet, the subcontractors assumed or undertook all of the contractor's responsibility and obligations to the company, as set forth in the principal contract, and the contractor expressly reserved all of the powers and rights against the subcontractors which the company held against it. In other words, the contract between the company and the principal contractor was adopted as the contract between the contractor and the subcontractors, in so far as it was applicable and not inconsistent with the terms of the subcontract. The subcontractors were to have specified prices for the work, somewhat less than those agreed to be paid by the company to the principal contractor, and 85 per cent. of the amount agreed upon was to be paid to the subcontractors on or about the 20th of the month following that in which the work was done; the residue being deducted and held until completion of the work. The subcontract further provided for the use by the subcontractors of the masonry plant of the contractor, then on the work, for which they were to pay $400 per month as rental, one-half to be deducted as a charge against the corresponding monthly estimate, and the balance charged against the final estimate.
Clause C of the contract with the railway company provided that, in case of violations of the contract, the chief engineer might, after 10 days' notice in writing, setting forth the particular breaches thereof and served on the contractor, either in person or mailed to its address last given by it to the company, or by posting the same at the door of its office on or near the work, proceed as follows:
"Require the contractor to at once supply such increase of force, appliances, or tools, and to cause to be made such improvement in the character of the work and materials as may be required, in the opinion of the chief engineer, to make the same conform to the stipulations of this agreement and the specifications; and if, on the expiration of ten days after such service of writing, the contractor shall have failed to furnish to the company evidence satisfactory to the chief engineer of the intention and ability of the contractor to furnish the desired improvements and remedy the specified deficiencies, the said company may thereupon enter on and take possession of said work, or any part thereof, with the tools, materials, plant, appliances, houses, machinery, or other appurtenances thereon, and hold the same as security for any or all damages or liabilities that may arise by reason of the nonfulfillment of this agreement within the time herein stipulated; and, furthermore, may employ the said tools, materials, etc., as aforesaid, and such other means as the company may deem proper to complete the work, at the expense of the said Contractor, and may deduct the cost of completing the entire work from any payments then due or thereafter falling due to the said contractor, and recover from him any and all deficiency."
Having commenced the work at the time specified for commencement thereof, or soon afterwards, Garrettson & Co. continued in the performance thereof until some time in October, 1911, but their progress was unsatisfactory. The Rinehart & Dennis Company did not complete the driving of the tunnel until some time in July, 1911, in consequence whereof the tunnel work to be done by Garrettson & Co. may have been delayed. From February until August they were engaged in what is known as outside work, bridge work, and other similar construction. After the work in the tunnel was started in July or August, the inspecting engineers of the railway company ascertained that the progress thereof was too slow, and complained to Rinehart & Dennis Company that the force on the work was insufficient. Having been notified in April, 1911, that the tunnel had not been started, the chief engineer of the railway company notified Rinehart & Dennis Company, by letter dated April 28th, that he desired the tunnel entirely finished in October, and he observed, in the summer, that the concreting was not progressing as it should. He was on the ground in August and made a vigorous complaint. As early as June 1, 1911, Rinehart registered a complaint about the progress of the work with the plaintiffs. On July 29, 1911, they were advised of the paucity of the work done in the tunnel and the necessity of completing it on time. They were told it might be possible to get an extension of 30 days, but also that the work must not drag along, and that inability to get help was no legal excuse for delay. By a letter dated August 5th they were reminded of the nonfulfillment of their promise to put on more men, and admonished that the work must be completed before freezing weather, and that they must show such progress within the next few weeks as would insure its completion. On August 14, 1911, this telegram was sent:
On the same day they answered thus:
"We have placed a night force on our work and expect to finish side walls this month also erecting centers in position to concrete every day until work is finished."
In a telegram dated October 2d, Rinehart & Dennis Company requested permission of the chief engineer to do the concrete work in day time only. To this he replied as follows:
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