A. M. Blodgett Const. Co. v. Cheney Lumber Co., Limited

• Decision Date: 02 January 1912
• Docket Number: 18,853
• Citation: 129 La. 1057,57 So. 369
• Court: Louisiana Supreme Court
• Parties: A. M. BLODGETT CONST. CO. v. CHENEY LUMBER CO., Limited

57 So. 369

129 La. 1057

A. M. BLODGETT CONST. CO. v. CHENEY LUMBER CO., Limited

No. 18,853

Supreme Court of Louisiana

January 2, 1912

Appeal from Sixth District Court, Parish of Ouachita; J. P. Madison Judge.

Action by the A. M. Blodgett Construction Company against the Cheney Lumber Company, Limited. From a judgment for plaintiff defendant appeals. Affirmed.

Clarke & Sholars, for appellant.

Stubbs Russell & Theus, for appellee.

OPINION

BREAUX C.J.

This is an action brought to recover the sum of $ 2,983.34, less credits aggregating the sum stated in the petition and a credit of a small amount allowed by the judge of the district court as the price for constructing a concrete dam by plaintiff on defendant's land, according to contract.

Plaintiff, according to the terms of this contract, bound itself to furnish the contractor all labor and material except cement, gravel, and timber and filing, which defendant promised to furnish, the dam, including wing walls, to measure 189 feet long, 14 feet high, 10 feet wide at the bottom, and 3 at the top as per sketch.

The contract contains stipulations about gates for the concrete, also about the filling, spiking, a spilling 60 feet wide, 7 feet high. Specifications are given for devices for raising and lowering gates by means of lever racks and poll which plaintiff was to furnish. Plaintiff claims to have completed the work according to contract.

The defendant denies that plaintiff constructed the works in a complete workmanlike manner; states that the walls before mentioned were to have been built at a decided angle to the dam and floodgates according to plans and specifications by constructing straight instead of walls at an angle. The pressure on the walls was greater than it should have been, and thereby endangered the whole barrier across the stream on defendant's land known as the "Chevriere" stream; that the purpose in having the dam constructed was to regulate and control the stage waters of defendant's cypress brake, containing about 4,000 acres of land, which is above a watershed just above its lumber manufacturing plant, and, while controlling those waters, allow sufficient to flow also to maintain its reservoir on the south side of the dam; that the floodgates did not answer the purpose. They could not be easily handled. They were too heavy. Defendant complained of certain tie beams.

The defense sets up a number of grounds in support of the complaint that the contract had not been completed according to plans and specifications.

Plaintiffs suit was filed in May, 1909. After issues joined, the cause was heard, and a number of witnesses were examined. The court was about to decide when an agreement was entered into by counsel to reopen the case for the introduction of further testimony.

First. Whether or not there was a groove in the concrete base for the floodgates of the dam.

Second. Whether or not the polls, racks, and pinions (comprising the raising and lowering device) were installed on the gates in accordance with the contract, and, if not, the cost of installing same.

A short time thereafter the dam was washed away and destroyed, and thereupon the defendant filed an appearance in which it represented that the dam had broken, and had become entirely useless; that seven of the floodgates were wrenched loose and entirely destroyed; and that the remaining three were useless.

With the court's leave, an amended answer was thereafter filed, trial of the case resumed and other evidence was heard.

The court decided in favor of plaintiff, save as to one or two small items.

The defendant appealed.

The result is that there is evidence before and after the destruction of the dam, and the conflict in the testimony of the witnesses is as great after the destruction as it was before. The contradiction is irreconcilable, as is nearly always true when expert testimony is heard to prove the facts at issue.

The want of angles in the walls gives rise to the first proposition for discussion. These side walls are of some importance, and are even indispensable. They were...