Mayor And Board of Aldermen of Town of Hickory v. Semmes

• Decision Date: 01 October 1920
• Docket Number: 21200
• Citation: 86 So. 273,123 Miss. 436
• Court: Mississippi Supreme Court
• Parties: MAYOR AND BOARD OF ALDERMEN OF TOWN OF HICKORY v. SEMMES ET AL

86 So. 273

123 Miss. 436

MAYOR AND BOARD OF ALDERMEN OF TOWN OF HICKORY v. SEMMES ET AL

No. 21200

Supreme Court of Mississippi

October 1, 1920

APPEAL from circuit court of Lauderdale county, HON. R. W HEIDELBERG, Judge.

Action by the Mayor and Board of Aldermen of the Town of Hickory against J. H. Semmes and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Reversed and remanded.

W. M Everett, Jacobson & Brooks, and G. G. Lyell, for appellants.

F. V Brahan, for appellees.

OPINION

SYKES, J.

The mayor and board of aldermen of the town of Hickory, appellants in this court, instituted suit in the circuit court against the appellees, defendants in the lower court, for damages for breach of a written contract relating to a heating plant installed in the schoolhouse of appellants at Hickory, Miss.

The appellees were awarded the contract for the building of a schoolhouse and the installment of a heating plant. That part of the contract alleged to have been breached is as follows:

"Contractor must install complete a hot air heating plant. The furnace to be located in the basement on a concrete foundation and to be a heavy duty cast-iron furnace inclosed in a sheet metal jacket.

"To be of an approved make equal to and of such size as to easily heat the building to the required guaranty and to be connected to stack with a black iron pipe riveted together and set in a substantial manner. All to have dampers and to be painted.

"Each room, cloak room, auditorium, office, music room, hall and the entire building to be heated and to have separate pipes and registers of such size and number to heat the entire building and each room to seventy degrees F. when the outside temperature is 10 degrees F. above zero. . .

. . .

"Said guaranty will be for one year from date of completion and acceptance."

The schoolhouse was built and a heating plant installed. Before the payment of the entire contract price a controversy arose between the contractors and the town as to whether or not the heating plant complied with the above terms of the contract, and before the appellants would pay the last installment due under the contract they received another guaranty from the appellees reading as follows:

"We guarantee the heating in Hickory school building as per specifications prepared by P. J. Krouse, architect."

The testimony for the appellants in the case showed that the furnace was fired by students of the school in accordance with the directions of the appellees and their agents as to the proper manner in which to fire the same, and that at no time were these firemen able to properly heat the rooms of the building in accordance with the terms of the contract; that at various and sundry times when the weather was warmer than ten degrees Fahrenheit above zero tests were made by trustees of the school, and that at no time was the building comfortably heated, or heated a temperature of seventy degrees Fahrenheit; that the building was uncomfortably cold for the teachers and pupils, and that on cold days it was necessary quite frequently to suspend school because of the failure to heat the building. That complaints were made to the appellees, and they failed to remedy the defect in the heating plant; that after several notices were given to appellees the appellants removed the heating plant, and installed a new plant at a cost of something like one thousand dollars.

The testimony for the appellees was to the effect that they installed a heater in the building manufactured by a reputable concern; that upon the completion of the building the heating apparatus was tested for two days, and that this test was satisfactory to the agents of the appellants; that when these tests were made the thermometer was never any lower than fifteen degrees Fahrenheit above zero. That this temperature was reached in the morning and it was warmer...