Linch v. Paris Lumber & Grain Elevator Co.

• Decision Date: 23 January 1891
• Citation: 15 S.W. 208
• Parties: LINCH v. PARIS LUMBER & GRAIN ELEVATOR CO.
• Court: Texas Supreme Court

Page 208

15 S.W. 208

LINCH v. PARIS LUMBER & GRAIN ELEVATOR CO.

Supreme Court of Texas.

January 23, 1891.

On rehearing. For former report, see 14 S.W. Rep. 701.

HENRY, J.

This suit was brought by the appellee to recover damages for a breach of contract. The parties signed a written contract in which appellant was styled "employer," and the appellee was styled "contractor." We copy the following extracts from the contract: "The contractor agrees to furnish all the material and do all the work, of whatever kind, required by, or reasonably to be inferred from, the plans and specifications prepared by W. A. McGinnis, said plans and specifications being hereby incorporated with, and made part of, this contract, for the full and entire completion of a three-story brick business block in the city of Paris, Tex., for the sum of $16,450.00. (2) The contractor agrees that all materials called for in the plans and specifications are to be of the first qualities of their respective kinds, and that all of the work shall be done in the most thorough and workman-like manner, and that he will not vary in any manner from the said plans and specifications without the written consent of the employer." "(4) The employer reserves the right to order in writing any alteration he may deem proper from the said plans and specifications." "(8) The employer reserves the right to appoint a superintendent or inspector of this improvement, and it is expressly stipulated and agreed that no claim shall be made or suit brought for any sum due, or claimed to be due for said improvement, unless upon certificate of said superintendent or inspector that the improvement has been made in strict accordance with the contract and plans and specifications, or such alterations as may have been made therein in accordance with the stipulations of this contract. (9) Upon the failure of the contractor to proceed with said improvement to the satisfaction of the employer, so as to secure the completion of the improvement within the stipulated time, or upon his failure to comply with the requirements of this contract, it shall be lawful for the employer, after giving ten days' notice of his intention so to do, to be served upon the contractor, either to complete said improvement by contract, or by days' work, at the expense of the contractor, and recover from him and his sureties the additional expense thereby incurred, if any, over the amount due according to this contract, or, at the option of the employer, to entirely avoid the contract, and bring suit at once against the contractor and his sureties for the damage occasioned thereby; in which latter case all work done and materials on the ground are to become the property of the employer without any further payment therefor." The payments are to be made upon the production of the certificate of the superintendent, in the following manner: "(1) 1,500 dollars to be paid after the foundation is laid. (2) 3,000 dollars to be paid after the first-story walls are up and second set of joists are in and bridged. (3) 2,250 dollars to be paid after the second story is up, and the third set of joists are in position and bridged. (4) 2,750 dollars to be paid after the ceiling and roof joists and bridged roof and cornice are on. (5) 2,500 dollars after floors are laid, ceilings up, and all sash in and hung. (6) 3,000 dollars to be paid after the plastering is finished and the front put in. (7) The last payment, of 1,450 dollars, is to be made when the building is finished, and approved by the owner and superintendent." The original plans are made part of the record, and it also contains the specifications, covering 18 closely written pages. The specifications minutely cover every detail of the improvement, from the bottom of the foundation to the top of the roof, and the plans exhibit it in the same way. Among others, the specifications contain the following provisions: "Said building to be erected in strict accordance with these specifications and accompanying drawings, prepared by W. A. McGinnis, architect." "The several floor plans and elevations are drawn to a uniform scale of four feet to one inch, but in all cases the figures marked on the several drawings are to be taken in preference to measurements by such scale, and, should any error be discovered, the same must be referred to the architect for adjustment and correction.' "The contractor for the work shall have a competent foreman on the work at all times, to whom the architect can give instruction, in the absence of the contractor." "All work to be done in a thorough workman-like manner, to the full satisfaction of the architect and owner, and any material condemned must be immediately removed from the building and grounds, and any work that may be condemned must immediately be made good." "Iron-work. The angle or box col's on front to 16" face 16" back or sides 16" No. 43-16"×16"×15' 16". Intermediate col's No. 47 8" 15' 6". Interior col's similar to No. 16. Girders to be 17", double ribbed. Door and window sills to have a face to match stone-work. The above numbers refer to Pullis Bros'. catalogue. Sills of doors to be 18½". All window-sills to be 8" wide, and extend into the wall at least 4" at each end. Window-sills on south and west fronts to have a box 2½" back, and to extend out flush, with stone belt. Sills in the east end to be plain, but boxed. Owner's name to be placed or cast on all door-sills. All columns to be full ¾ thick."

Plaintiff's original petition charged that while it was proceeding in good faith to construct the improvement according to the contract, and when it had so completed the first story of the building, and had placed the joists thereon, and become entitled to have paid to it the second installment of its compensation, the defendant willfully and wrongfully refused to carry out the contract, unlawfully took possession of the building, and ejected therefrom plaintiff's workmen, etc.; and it gave a specific statement of the damages that had resulted to it from defendant's breach of the contract. We copy a statement of the subsequent pleadings of the parties from appellant's brief, which, in so far as it becomes necessary to consider them on this appeal, are as follows: The defendant "alleged that, by the terms of the contract, all materials were to be of the best quality, the work to be done in the most thorough and workman like manner, and that plaintiff would not vary in any manner from the plans and specifications without the written consent of the defendant; but alleges that plaintiff, without consent, varied from the contract, as to both materials and workmanship, used inferior materials, of less service, less cost, and less value than the contract called for, to-wit: The bricks, mortar, all iron and iron-work, front, iron columns, sills, window-sills, interior columns, and all iron-work, the joists, sleepers, and other lumber, were inferior, and not in compliance with the contract, and of less value, and at less cost than the contract calls for. Iron front not so fine, nor as well ornamented, and much lighter than that called for in the contract. Door-sills were not bush hammered to match stone-work. Front door sills had no flat face, but were of the old regulation style. Window-sills at the east end of the building were too short. Sill course on south side too high for west front. Floor out of level, did not match at S. W. corner as to height and not alike. Door-frames of first story set back too far from face of wall and too narrow. Foundation and second set of joists out of level. N. E. corner of first story lower than S. W. corner. No trimmings or headers doubled at well hole of stairs, or around flues. Joists not trebled under main hall walls, nor under other partitions. Girders and joists of second story not level; columns not set level; plates under ends of girders were ¼×7×18 and ¼×7×27, instead of ½×6×36, inches. South and east wall not laid up with neatly struck joints; rear doors and windows not on a line at top. Sash pulleys iron, instead of `steel axle.' Intermediate columns were not of the dimensions of No. 47, Pullis catalogue. No name cast in or on part of the door-sills. Too many soft bricks used, — all of which is variant from the contract, and impaired the value of the building. That by the terms of the contract defendant had a right to appoint a superintendent or inspector of the work, and that no claim should be made, or suit brought, for any sum due or claimed for work, unless upon certificate of said superintendent that the work was in strict accordance with the contract and plans and specifications; * * * and that, upon a failure of the contractor to proceed with the work to satisfaction of the employer, so as to secure its completion within the stipulated time, or upon a failure to comply with the contract, it was lawful for the employer, after ten days' notice, either — First, to complete said improvements by contract, or by days' work, at the expense of the contractor, and recover from him the additional expense; * * * or, second, at the option of the employer, to entirely avoid the contract, and sue the contractor and his sureties for damages. In the latter case, all work done and materials on the ground were to belong to the employer," etc. Defendant alleges a failure on the part of plaintiff to proceed to the satisfaction of the employer, or in accordance with the contract; after which, and on the 16th day of December, 1886, he notified plaintiff in writing of the defects in the work and materials, and declined to pay therefor. Again, on the 24th day of December, defendant gave plaintiff the same notice, and that he would not receive the work and materials, and called upon plaintiff to comply with its contract or abandon the job, and let defendant take charge of it under the contract, etc. Again, on the 27th of December, 1886, defendant, by letter, urged plaintiff to comply with its...