Morton v. Roanoke City Mills, Inc.

• Decision Date: 19 October 1926
• Docket Number: No. 2489.,2489.
• Citation: Morton v. Roanoke City Mills, Inc., 15 F.2d 545 (4th Cir. 1926)
• Parties: MORTON v. ROANOKE CITY MILLS, Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

15 F.2d 545 (1926)

MORTON v. ROANOKE CITY MILLS, Inc.

No. 2489.

Circuit Court of Appeals, Fourth Circuit.

October 19, 1926.

A. B. Hunt, of Roanoke, Va., and William J. O'Brien, of Baltimore, Md. (Seymour O'Brien, of Baltimore, Md., on the brief), for plaintiff in error.

W. J. Henson and E. W. Poindexter, both of Roanoke, Va. (Poindexter & Poindexter and Jackson & Henson, all of Roanoke, Va., on the brief), for defendant in error.

Before ROSE and PARKER, Circuit Judges, and SOPER, District Judge.

SOPER, District Judge.

On October 9, 1919, Ph. Morton entered into a written contract with Roanoke City Mills, Inc., wherein Morton agreed to paint, from a design to be submitted to and approved by the corporation, 50 out-door advertising bulletin boards, and to erect and maintain them in good condition on exhibition, and to rent them for three years to the corporation at the rate of $4 per month for signs already constructed and located, and at the rate of $5.30 per month for new signs. Fifty boards were erected, but the corporation refused to pay for them, charging unreasonable delay in their erection, and Morton brought an action at law for breach of contract and claimed the sum of $9,165.60. The jury, having heard testimony as to the time and manner in which the work was done, found a verdict for the plaintiff for $2,784.60, and the case was brought here on writ of error by the plaintiff, who complains of the court's instructions to the jury.

The important question in the case is whether the plaintiff was guilty of unreasonable delay in painting and erecting the boards. No time was specified in the contract; but the beginning of the period of construction was necessarily governed by the date of approval of the design by the corporation, which occurred February 3, 1920. The evidence showed that the first board was erected on August 23, 1920; 7 boards in the 12 months subsequent to February 3, 1920, and only 26 boards altogether prior to October 19, 1921. On that date the corporation, by letter, declined to pay a bill submitted for work done, and warned the contractor that any further work under the contract would be done at his own risk, since the corporation would not accept the service at that late date. Morton nevertheless proceeded with the work, but did not finish it until October 20, 1922, when the last board was put in place.

The court instructed the jury (1) that a contract which does not specify the time in which the work is to be done is to be read as if a reasonable time were stated as the time of performance; and (2) that the delay on the part of the plaintiff was so great that the defendant's letter of October 19, 1921, repudiating the contract, was justified, and that the plaintiff could not recover anything for performance after the receipt of the letter, notwithstanding such performance may have been beneficial to the defendant. The plaintiff complains that these instructions were wrong for two reasons: (1) Because the letter of October 19, 1921, was not a definite repudiation of the contract; and (2) because the evidence as to the causes of the delay was conflicting, and the court should therefore have permitted the jury to decide whether the work was done in a reasonable time.

As to the first reason, little need be said, since the letter clearly announces a definite refusal on the part of the defendant either to pay for part performance or to accept future services by the plaintiff. So far as the reasonableness of the delay is concerned, we think that the case falls within the rule laid down by Circuit Judge Taft in Hamilton v. Phœnix Ins. Co., 61 F 379, 9 C. C. A. 530, that the question of reasonable time is a question of law for the court, where the time taken is so clearly...