Modern Steel Structural Co. v. Van Buren Cnty.

• Decision Date: 13 February 1905
• Citation: 102 N.W. 536,126 Iowa 606
• Parties: MODERN STEEL STRUCTURAL CO. v. VAN BUREN COUNTY (WESTERN BRIDGE CO., INTERVENER).
• Court: Iowa Supreme Court

126 Iowa 606

102 N.W. 536

MODERN STEEL STRUCTURAL CO.

v.VAN BUREN COUNTY (WESTERN BRIDGE CO., INTERVENER).

Supreme Court of Iowa.

Feb. 13, 1905.

Appeal from District Court, Van Buren County; Robert Sloane, Judge.

The opinion states the case. Affirmed.Wherry & Walker and Ryan, Merton & Newberry, for appellant Modern Steel Structural Co.

Mitchell, Sloan & McBeth and Pennington & Pennington, for appellant intervener.

J. C. Davis, E. R. Harlan, and E. L. McCoid, for appellee.

WEAVER, J.

On June 20, 1900, the defendant county entered into two separate written contracts with the Western Bridge Company, by the terms of which the latter agreed to furnish the materials and erect for the former two bridges across the Des Moines river, as follows: One at the town of Selma for $12,050, and one at the town of Kilbourne for $15,200. In each case it was provided that 75 per cent. of the cost of the materials should be paid for on their delivery and acceptance, and the remainder upon the completion and acceptance of the work. The Western Bridge Company, which was not a manufacturer of or dealer in bridge materials, entered into a contract with plaintiff for the purchase of such materials as were necessary, such materials to be prepared by the plaintiff ready to go into the bridges according to the plans or directions furnished by the bridge company. This contract was entire, covering the materials for both bridges, and providing for payment at a given rate per hundred pounds, 75 per cent. on receipt of materials at their destination and the remainder within 30 days of receipt of last shipment. Under this contract materials were furnished to the bridge company, and two bridges were erected in alleged compliance with the contract. This action was begun by the plaintiff against the county on June 20, 1901, under Code, § 3102. The petition alleges the letting of the bridge contracts by the county to the bridge company, and the contract of the latter with the plaintiff, pursuant to which it furnished materials to the bridge company, on which there was an unpaid remainder of $6,099, with interest. It is further alleged that within 30 days after the last of said materials was furnished plaintiff filed a duly verified statement of its account with the auditor of said county, which account and claim is still unpaid, and that under the terms of the contract between the bridge company and county the latter was required to withhold all of the contract price except 75 per cent. of the cost of the materials for the purpose of meeting such claims as the one now made by the plaintiff. Plaintiff therefore asks to recover from the county the full unpaid balance of its account against the bridge company. For answer to this claim the county admits letting the bridge contract to the Western Bridge Company, but denies that said bridges ever were erected according to said agreements. It alleges that the bridge company fraudulently substituted and placed in each of said bridges other lighter and less valuable materials than were called for by said contracts; that by reason of said fraud and failure to perform said contracts the defendant has sustained damage greatly in excess of the unpaid remainder of the contract price, and there is nothing in the hands of the defendant applicable to the payment of the plaintiff's claim. In reply the plaintiff alleges that the county was represented by one Booth, an engineer in supervising the construction of the bridge; that Booth inspected and approved the materials as delivered; and that since the bridges were built the county, with full knowledge of all the facts, has accepted and opened said bridges to public use, and is now estopped to deny its liability to pay therefor. On December 11, 1901, the Western Bridge Company intervened, setting up its contracts with the county to build the bridges and with plaintiff to furnish the materials therefor, and alleges that such materials were substantially of the character and weight called for by the contracts with the county. It also pleads the inspection and approval of the materials and of the bridges by the agents and representatives of the county, and asks judgment for the unpaid balance of the contract price. As against the plaintiff it sets up various claims for damages on account of delays and expenses occasioned by the fault of plaintiff in the completion of the work. Taking issue upon the petition of intervention, the plaintiff denies the bridge company's claims for damages, and demands judgment against it for the unpaid balance of the account for bridge materials. The county answering said petition, sets up in detail the aforesaid charge of fraud in the construction of the bridges and in the failure of the intervener to perform its contract, and denies the authority of Booth or any other person to consent to any material departure from the agreement.

The issues were tried to the court as in equity. The decree finds the Western Bridge Company failed to perform its contract, and that the county was entitled to damages from said company in the sum of $1,046.42 in excess of the unpaid remainder of the contract price for the construction of the bridges, and rendered judgment accordingly. It also finds the plaintiff entitled to recover from the bridge company the sum of $6,815.67, being the unpaid remainder of the account for materials furnished; and as against the county the petition was dismissed. The plaintiff and the intervener have both appealed, but the appeal on the part of the intervener has not been argued.

1. Turning first to the fact questions involved, we find ourselves in accord with the conclusions of the trial court as expressed in its written opinion which accompanies the decree. Without attempting to set out in full the various circumstances disclosed by the voluminous record, we may say it is shown beyond a reasonable doubt that the bridge contractor willfully and designedly ignored the specifications upon which it bid for and obtained the contracts from the county, and prepared other specifications for materials of greatly inferior weight and strength. It was upon these substituted specifications, made without the authority or consent of the county, that the contract between the plaintiff and the bridge company was entered into, and pursuant to which plaintiff furnished the materials. By this scheme the Selma bridge, which should have contained 230,000 pounds in the superstructure and 108,000 pounds in the substructure, was reduced to 183,560 pounds in the first item and 69,630 pounds in the last item. In respect to the Kilbourne bridge the shortage was a little less flagrant, but even there it amounted to 18,180 pounds in the superstructure and 31,002 pounds in the substructure; making the total weight of metal in the bridges as constructed 133,992 pounds less than it should have been had the company's contract been faithfully and honestly performed. It would be farcical to hold that this was in any sense of the word a substantial compliance with the contracts, or to account for the discrepancy on the theory of mere accident or mistake. Indeed, it is scarcely denied by the bridge company that the specifications on which the contracts were let were by it systematically scaled down in size and weight of materials, but it is sought to excuse or justify this action on the claim that the board of supervisors or the engineer employed by the board to look after the interests of the county consented to the change. The proof entirely fails to establish any consent or agreement by the board of supervisors for this radical variation from the terms of the contract, and it is very certain that the engineer had no power or authority to bind the county to any such change. It is equally clear that the engineer did know that the bridges were not being built according to the agreement, and his acquiescence therein can be accounted for on no other theory than corrupt connivance in the wrong being perpetrated. There is room also to believe that the individual member of the board in whose district or territory the bridges were located knew, while the bridges were still in the course of construction, that they did not come up to constract requirements, but his lack of technical knowledge of such work may account for his apparent disregard of the public interests committed to his care. Indeed, plaintiff's counsel frankly accepts the alternative, saying that, if no change was made in the contract by the consent of the board of supervisors, or of the duly authorized engineer, “then it cannot be denied that the engineer was in collusion with the Western Bridge Company to defraud this county; neither can it be denied that the board of supervisors were shamefully remiss in their duties in permitting this material to go into the construction of the bridges.” This statement must be concurred in by every candid reader of the record here presented, and, the alleged change or modification in the contract not having been shown, and the failure of the bridge company to construct the bridges according to agreement having been fully established, we have next to inquire concerning the rights and remedies of the several parties under the issues made by their pleadings.

2. Objection is made to the method adopted by the trial court for the computation of damages which the county is entitled to recover from the Western Bridge Company. It is said that the court adopted as its estimate of the deficiency in the weight of the bridges the figures given by a single expert witness--one Ditman--and ignored the estimates given by other witnesses. It is true that the computations made by the trial court correspond closely, if not entirely, with those made by Ditman; but an examination of the record shows that the opinion of this witness was corroborated in many ways, and we think it may safely be accepted as a conservative and fair estimate. The president of the steel...