Missouri Bridge And Iron Company v. Stewart

• Decision Date: 07 December 1908
• Parties: THE MISSOURI BRIDGE AND IRON COMPANY, Appellant, v. JOHN A. STEWART
• Court: Kansas Court of Appeals

114 S.W. 1119

134 Mo.App. 618

THE MISSOURI BRIDGE AND IRON COMPANY, Appellant, v. JOHN A. STEWART

Court of Appeals of Missouri, Kansas City

December 7, 1908

Appeal from Boone Circuit Court.--Hon. Nat. M. Shelton, Special Judge.

Reversed and remanded.

E. W Hinton for appellant.

(1) The conduct of the defendant in permitting the plaintiff to go ahead with the work after the contract time for completion did not operate either in law or in fact as a waiver of his right to recoup damages for the delay. Orange Co. v Gorman, 161 Mo. 203, and authorities there cited. (2) There is nothing in the agreement of September 19-20, for the change in the location of one of the supports which operated as a waiver or release of defendant's right of action for breach of the contract. Harrison v. Railway, 74 Mo 364; Gann v. Railway, 72 Mo.App. 34.

C. B. Sebastian and W. M. Williams for respondent.

(1) Plaintiff is entitled to recover the balance due for the viaduct, notwithstanding the failure to complete it within the time fixed by the original contract. (2) Defendant, by changing the plans and specifications, waived any right to require the completion of the work within the time originally specified, and the court erred in failing to give the declaration of law asked by the plaintiff to the effect that there could be no recovery upon the counterclaim. Dannat v. Fuller, 120 N.Y. 558; Estill v. Railroad, 56 Mo. 282; McGuiley v. Hardy, 18 Cal. 116; Star v. Mining Co., 13 P. 195; Cornish v. Suidan, 13 So. 118. (3) The work was not commenced until the 13th of August, 1906. Defendant was informed that the viaduct was to be built after that time. He made no objection to it, and subsequently furnished materials for the structure and made payments on account of the work, in addition to changing the plans and specifications. This amounted to a waiver of the time limit. Chambers v. Board of Education, 60 Mo. 379; 30 Ency. Law (2 Ed.), 1259; 30 Ency. Law (2 Ed.), 1261; Heating and Ventilating Co. v. Bissell, 41 Mo.App. 426.

OPINION

ELLISON, J.

The defendant employed the plaintiff to construct a viaduct over the tracks of the Missouri, Kansas & Texas Railway Company so as to connect with the city proper an addition to the city of Columbia laid out by defendant. The contract was in writing and provided among other things that the structure was to be on steel columns resting on cement bases, and, that defendant was to furnish the necessary lumber and have it delivered on or before the 15th of June, 1906, and that plaintiff was to complete the structure by the 15th of July, 1906. It was stipulated that the plaintiff was to be paid $ 5,300. Of this sum defendant paid $ 4,849.48, leaving a balance of $ 450.52 which plaintiff claims is still due.

The defense was that plaintiff failed to complete the structure in the time agreed and that in consequence defendant was damaged in a sum in excess of the balance claimed by plaintiff. The damage to defendant is claimed as having arisen in this way: Defendant had sold a number of lots in the addition which he had laid out and taken notes for purchase money, in which was a stipulation that no interest should run until the viaduct was completed.

The case was submitted to the court without a jury and defendant was allowed $ 100 damages on his counterclaim, judgment being rendered for plaintiff for $ 350.52. Both parties thereupon appealed to this court.

Plaintiff did not complete the viaduct by the 15th of July as agreed. It was not completed until the 15th of November. To excuse the delay it was shown that one of the steel piers, on demand of the railroad, had to be differently placed from that provided by the specifications. There was a conflict in the evidence as to the time necessarily lost by this delay, though it is clear that it was a substantial period. There was evidence tending to show that defendant did not furnish the lumber at the time agreed upon. So there was evidence that plaintiff did not begin the work until near thirty days after contract time in which it was to have been finished.

We think defendant to be right in his insistence that mere acceptance of the work and paying for it will not waive a claim for damages in not completing...