Modern Steel Structural Co. v. Van Buren County

• Decision Date: 13 February 1905
• Parties: MODERN STEEL STRUCTURAL COMPANY, Appellant, v. VAN BUREN COUNTY, IOWA, Appellee, and WESTERN BRIDGE COMPANY, Intervener, Appellant
• Court: Iowa Supreme Court

102 N.W. 536

126 Iowa 606

MODERN STEEL STRUCTURAL COMPANY, Appellant,
v.
VAN BUREN COUNTY, IOWA, Appellee, and WESTERN BRIDGE COMPANY, Intervener, Appellant

Supreme Court of Iowa, Des Moines

February 13, 1905

Appeal from Van Buren District Court.--HON. ROBERT SLOANE, Judge.

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.

OPINION [102 N.W. 537]

[126 Iowa 608] THE opinion states the case.--Affirmed.

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 [126 Iowa 609] $ 15,200. In each case it was provided that seventy-five 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, seventy-five per cent. on receipt of materials at their destination and the remainder within thirty 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, section 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 thirty 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 seventy-five 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 [126 Iowa 610] 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 [126 Iowa 611] 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.

I. 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 [102 N.W. 538] 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...