Manistee Iron-Works Co. v. Shores Lumber Co.

• Decision Date: 07 January 1896
• Citation: 92 Wis. 21,65 N.W. 863
• Parties: MANISTEE IRON-WORKS CO. v. SHORES LUMBER CO.
• Court: Wisconsin Supreme Court

92 Wis. 21

65 N.W. 863

MANISTEE IRON-WORKS CO.

v.SHORES LUMBER CO.

Supreme Court of Wisconsin.

Jan. 7, 1896.

Appeal from circuit court, Ashland county; J. K. Parish, Judge.

Action by Manistee Iron-Works Company against the Shores Lumber Company. Judgment for defendant. Plaintiff appeals. Reversed.

The plaintiff brought this action against the defendant to recover a balance of $2,030.45, and interest from May 15, 1893, alleged to be due under a written contract between the parties, and for extra work and materials. By the contract made December 29, 1892, the plaintiff agreed to make and compound a certain marine engine, and to build and manufacture for it a certain marine fire box boiler, and put the same on the foundation in the defendant's steam barge, D. W. Powers, at Sheboygan, Wis., according to certain specifications, to pass inspection for 140 pounds steam, and “do any other work not mentioned which would properly come in putting new boiler in boat”; and, among other things, “to make new valve stems and necessary connections to work high-pressure valves, refit old link and eccentric rods, necessary drain cocks and pipes for cylinders, new high-pressure exhaust pipe, refit present steam pipe,” etc., “in all pipes from boiler to engine that have to be changed on account of new boiler and engine, and one exhaust shifter,” for the sum of $6,340, “to have all finished by April 15, 1893, and to have all machinery in boat so that carpenters can complete cabins by April 1, 1893. All work to be done in a good and workmanlike manner. In case all work not finished by April 15, 1893, the plaintiff to pay $50 per day for each day the boat is delayed”; and that, “as regards the date of finishing and fine, this contract is made to include the work of compounding the engine as well.” The defendant, it was alleged, agreed to deliver the said barge in the city of Sheboygan to the plaintiff January 4, 1893, in such condition that it would not be delayed in the performance of its said contract. The plaintiff claimed that it was delayed in the performance of its contract by the failure of the defendant to deliver the barge at the time aforesaid; and that it was not delivered until about the middle of January, 1893, in a leaky and unseaworthy condition, a great quantity of ice and water being in her hold and engine room, making it impossible for the plaintiff to obtain the necessary measurements to build the engine and boiler specified; and that, by reason of such delay occasioned by the act of the defendant, it was unable to complete said contract until May 16, 1893, whereby the plaintiff was occasioned expenses, in wages of employés and otherwise, to the amount and value of $100. It also claimed that defendant was indebted to it for taking out an old crank shaft and rod, and for making and constructing and placing in position a new one in and for said barge, at the agreed price and value of $475, which was completed May 12, 1893; and that the defendant was further indebted to it in the sum of $115.45 for extra work and labor and materials used in repairing and putting in good operating shape the engines and machinery in and about said barge, not expressly contracted for, the same having been done at the instance and request of the defendant,--in all, amounting to the sum of $7,030.45. Only $5,000 of this amount had been paid, and judgment was claimed for $2,030.45, with interest from May 15, 1893. The defendant denied the principal allegations of the complaint as to performance, and alleged, by way of counterclaim, that the plaintiff failed and neglected to perform its contract by not finishing and completing the work by April 15, 1893; that the work was not completed until 32 days thereafter, May 18, 1893, whereby the defendant suffered damages in the sum of $1,600, at $50 per day that said boat was delayed; further, that it was delayed four days more at Charlevoix before being delivered to the defendant, to its damage of $200, and also one day at Detour, to its damage in the sum of $50. For a further and separate counterclaim, defendant claimed that plaintiff was indebted to it in the sum of $100, paid by the defendant for a tug to get the said boat off St. Martin's Reef, where the same had been run ashore through the failure and neglect of the plaintiff to perform its contract, and for the further sum of $11, for moneys paid by the defendant at the special instance and request of the plaintiff in moving said boat to the railroad dock at Sheboygan, and pumping up its boiler. The defendant alleged a further counterclaim for the failure and neglect of the plaintiff to perform its work in the contract specified, in a good and workmanlike manner, to its damage in the sum of $2,500; the said claims amounting in all to $4,461, for which it demanded judgment. The plaintiff replied to said counterclaims, denying the same, and alleging that it was delayed in the commencement and completion of the said contract by the failure and neglect of the defendant to deliver said barge at the time it was agreed upon, and to have the same free from ice and water, but delayed the same a long time, and, when delivered, she was so filled with ice and water that plaintiff was put to great expense in removing the same, and it was thereby delayed in the completion of its said contract for 32 days, so that the defendant became indebted therefor in the sum of $1,600, being $50 per day; and the plaintiff alleged that the contract was completed and accepted May 16, 1893. Trial before court and jury, and there was a special verdict, in substance as follows: (1) The contract price for doing the work provided for in the contract was $6,340. (2) The agreed price for removing the old crank shaft and rod, and placing new one in the barge mentioned, was $475. (3) There had been paid on said contract by plaintiff to defendant $5,000. (4) The plaintiff knew the condition that said barge was in at the time of making said contract. (5) The defendant did not deliver the barge at Sheboygan in a reasonably good condition. (6) The defendant did not deliver said barge at Sheboygan within a reasonable time after the contract was made. (7) The plaintiff was delayed by reason of defendant's delivering the barge in such bad condition 20 days. (8) It was not any part of plaintiff's contract to put in valve-stem guide which broke soon after said barge left Sheboygan. (9) Said barge was necessarily delayed by the breaking of said valve-stem guide 4 days. (10) The reasonable value of the use of said barge, with her crew and equipment, was $100 per day. (11) Said barge was delayed after April 15, 1893, at Sheboygan, by plaintiff's failure to complete said work, 31 days. (12) The reasonable value of said barge per day without her crew was $40.50. (13) The plaintiff performed its part of said contract in a good and workmanlike manner. (15) The plaintiff's extra work and materials were reasonably worth $88.05. (16) The plaintiff is indebted to the defendant in the sum of $6, paid by it at plaintiff's request for moving said barge to the railroad dock at Sheboygan. The first three findings were by the court. The plaintiff moved for judgment upon the special verdict for $1,457.55, with interest from May 18, 1893; that is to say: For the contract price, $6,340; for removing the old crank shaft and rod, etc., $475; and for extra work, $88.05,--amounting to $6,903.05; deducting $5,000 paid, leaving a balance of $1,903.05; deducting, also, from this the value of the barge per day, at $40.50, for 11 days, $445.50, leaving the said sum of $1,457.55. The defendant at the same time moved that findings Nos. 5 and 7 be stricken out for immateriality, and that the eighth finding be stricken out, and answered by the court, on the ground that it involved a question of law for the court, and not of fact for the jury. The defendant also...