McDonough v. Evans Marble Co.

• Decision Date: 07 January 1902
• Docket Number: 990.
• Citation: 112 F. 634
• Parties: McDONOUGH v. EVANS MARBLE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

112 F. 634

McDONOUGH v. EVANS MARBLE CO.

No. 990.

United States Court of Appeals, Sixth Circuit.

January 7, 1902

The defendant in error (plaintiff below, hereinafter referred to as plaintiff), through a correspondence by telegraph dispatches and letters, agreed to furnish 23,000 feet of Italian marble tiling to the plaintiff in error (defendant below, hereinafter called defendant) for 33 cents a foot. This tiling was needed by the defendant for the fulfillment of a contract he had with the

county commissioners of Washington county, Pa., to furnish and lay this tile and perform other marble work in a court house in that county. The defendant ordered and had shipped about January 29, 1900, 10,001.5 feet, on February 21, 1900 5,208.5 feet, and on February 27, 1900, 4,542.5 feet of tile on the contract, after which no more tile was furnished. In January, before any tile was shipped, the plaintiff wrote asking about the manner of payments, and on January 16, 1900 the defendant wrote that he expected to pay as he received estimates on the work, or, if the plaintiff preferred, he would give an order on the county commissioners for the amount of the bill; and he added that, as he had never sublet any materials in his work before, he was ignorant of the custom in making settlements in this respect. The defendant gave an order to the plaintiff on the county commissioners which they refused to accept, and another on the American Bonding & Trust Company, surety in the contract of defendant with the county commissioners, which it refused to accept. On May 10, 1901, the county commissioners, alleging that the defendant was not carrying on his work in a prompt and diligent manner, declared his contract forfeited under its provisions, and afterwards they let the contract to other parties. The plaintiff endeavored to get a settlement with the defendant, but could not get any communication from him, or excuse why he did not pay its account, until July 20, 1900, when it began this suit to recover the price of the tile furnished under the contract. The answer and cross petition, after a general denial, set up, by way of counterclaim, an alleged conspiracy between the plaintiff and others with the county commissioners and architect to prevent the defendant from carrying out his contract, and alleged that the county commissioners, 'pretending that the defendant was unable to finish his contract within the time fixed by his contract with said commissioners, by reason of not having sufficient material there, the said commissioners declared the said contract forfeited. ' This defense, by way of counterclaim, was stricken out on motion, and an amended answer was filed, in which the contract was set out for delivery of 23,000 feet of tile within 30 days from December 12, 1899, to be paid for out of estimates upon the building in which the tiling was to be put, and a denial that the 23,000 feet were delivered, and, for a second defense, the counterclaim was repeated, leaving out the allegations of conspiracy, and alleging that the plaintiff 'did not furnish said twenty-three thousand feet, but only furnished eighteen thousand two hundred and nineteen feet and three inches, quality conforming to the contract, which was put in said building, and then declined to furnish any more, and thereupon, alleging that the defendant was unable to finish his contract within the time fixed by the contract with said commissioners by reason of not having sufficient material there, and his inability to get it in time, the said county commissioners declared the said contract forfeited. ' A third and partial defense, that 2,556 feet of the tile, worth $652.08, were defective, was added. The plaintiff replied to this answer and cross petition, denying that the tile were to be delivered within 30 days, and, if such were the agreement, it was waived and modified at the request of the defendant, and denied that payment was to be made out of estimates, and averring a willingness to deliver 23,000 feet of tile upon performance of defendant's obligation to pay for tile already delivered. The motion made to strike out these allegations of the reply was denied. At the trial the court declined to allow the defendant to show that there was a well-defined custom that payments for material were to be made from the first estimates received by the contractor. The second defense was taken from the jury, and they were directed to return a verdict for all of the tile not defective that were furnished by the plaintiff at the contract price. The jury returned a verdict deducting the amount claimed for defective tile, and the judgment based on this verdict is brought here on...