Lawrence County v. Stewart

• Decision Date: 11 June 1904
• Citation: 81 S.W. 1059,72 Ark. 525
• Parties: LAWRENCE COUNTY v. STEWART
• Court: Arkansas Supreme Court

81 S.W. 1059

72 Ark. 525

LAWRENCE COUNTY v. STEWART

Supreme Court of Arkansas

June 11, 1904

Appeal from Lawrence Circuit Court, FREDERICK D. FULKERSON, Judge.

Reversed.

STATEMENT BY THE COURT

The county court of Lawrence county in January, 1900, appointed three commissioners to contract for and superintend the erection of a court house for the Eastern district of that county. These commissioners on the 9th day of June, 1900 made a contract with T. B. & W. R. Stewart, partners doing business under the firm name of Stewart Brothers, whereby Stewart Brothers agreed to construct the courthouse according to plans and specifications furnished by Chas. L. Thompson the architect, and to complete the building on or before the 1st day of January, 1901. The county agreed to pay the contractors for this work $ 15,552, in county warrants. This amount was, under the contract, to be paid in monthly installments as the work progressed, in proportion to the amount of the materials furnished and work performed as shown by certificate of the architect. But the contract provided that 10 per cent. of the whole amount should be retained until the work was fully completed and accepted. It also contained this provision: "It is further agreed that the said contractors shall forfeit as liquidated damages to the said owner $ 10 per diem for each and every day the said building be and remain incomplete and unfinished from and after the date hereinafter mentioned, to-wit: the 1st day of January, 1901."

The contractors failed to complete the building until about two months after the day named in the contract.

The county court in January, 1901, made a payment on the work after the expiration of the time in which the building was to be completed. About the 2d day of February following the contractor, at the request of the county judge, finished a room in the building to be used as an office by the circuit clerk, and the clerk moved into the office under the direction of the county judge.

The circuit court for the Eastern district convened about the first of March, and the county court made an order that it be held in the new courthouse, though it had not then been accepted and was still in control of the contractor, who had not quite completed the finishing work. A few days afterwards it was finished and accepted by the commissioners.

When the contractors presented their claim for remainder of their claim, the county court allowed the same, with the exception of $ 300 which it retained as damages due for the failure of the contractors to complete the work at the time specified.

The contractors took an appeal to the circuit court. On the trial in the circuit court, the presiding judge refused to direct a verdict for the defendant, and gave the following instructions to the jury:

"1. You are instructed that the circuit court clerk having occupied a room in the courthouse prior to the completion and acceptance of such house by permission of the county judge would not be a waiver of the time in which the $ 10 damages per day should run.

"2. You are instructed that a part payment by the county court made to the contractor after the time for which the contract should be completed is a waiver of damages for lack of completion within the time specified in the contract.

"3. You are instructed that the occupancy of the building by the circuit court prior to the acceptance of the building from the contractors by the courthouse commissioners and the county court is a waiver of any damages by reason of the failure of the contractor to complete the building within the time mentioned in the contract, where such circuit court is held in said building by order and direction of the county court. You will therefore find your verdict in favor of the plaintiffs in this cause for the full amount sued for."

The defendant county objected to the second and third instructions, and, its objections being overruled, exceptions were duly saved.

The jury returned a verdict from the box in favor of the plaintiff for the sum of $ 300.

Judgment reversed.

S. D Campbell, J. H. Townsend, for appellant.

The intention to waive a right must be established by language or conduct, and not by conjecture. 46 N.W. 976; 28 P. 1037; 29 S.W. 490; 13 N.Y. 164; 6 So. 834; 45 N.W. 60; 29 Am. & Eng Enc. Law, 900. Maving into a house before repairs are complete is no waiver of the right to liquidated damages for delay in completion. 19 Am. & Eng. Enc. Law (2d Ed.), 19; 8 Can. L. T. 377. The stipulation for damages should be construed as liquidated damages. 14 Ark. 315; 54 Ark. 344; 56 Ark. 405; 57 Ark. 175; 69 Ark. 114; 13 Wash. 364; 19 F. 239; 23 A. 628; 52 N.W. 503; Lloyd, Law of Building, 64; 1 Suth Dam. (2d Ed.) 279, 283, 290.

J. W. & J. M. Stayton, for appellee.

The payment for the January estimate was a waiver of the failure to complete within the time. 11 Wood (Pa.), 332;; 83 Ill. 517; 16 Daly, 91; 39 N.Y.S. 133; 35 Barb. 602; 62 Wis. 18; 7 Me. 76; 11 Daly, 367; 46 Conn. 558. The occupation of the building before its completion and acceptance was a waiver of the breach. 6 Ia. 530; 27 Vt. 766; 40 Mo.App. 234; 16 Me. 77; 24 Ill. 268; 2 Woodw. (Pa.) 332; 20 Ohio 361; 16 Abb. Pr. U. S. 337. An accepance is a waiver of the failure to perform in time. 104 Ill. 206; 9 Ind. 497; 1 Ind.App. 317; 3 Rob. (La.) 10; 36 Me. 92; 16 Me. 77; 7 Me. 76; 31 Mo. 516.

OPINION

RIDDICK, J. (after stating the facts).

This is an action by a firm of contractors against Lawrence county to recover the sum of $ 300, which they claim is the balance due them by the county for building a courthouse. There is no dispute about the facts. The county admits that it agreed to pay plaintiffs a stipulated sum for completing the courthouse, that the courthouse was completed before the action commenced, and that it has not paid the $ 300 claimed. But the county contends that, as the work was not completed within the time specified in the contract, the plaintiffs, by virtue of the terms of the contract, became liable to damages at the rate of $ 10 a day for each day they were in default, and that...