Ottumwa Bridge Co. v. Corrigan

• Decision Date: 31 May 1913
• Citation: 158 S.W. 39
• Parties: OTTUMWA BRIDGE CO. v. CORRIGAN et al.
• Court: Missouri Supreme Court

158 S.W. 39

OTTUMWA BRIDGE CO. v. CORRIGAN et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

Rehearing Denied June 28, 1913.

1. EXCEPTIONS, BILL OF (§ 36)—TIME FOR ALLOWANCE AND FILING.

Act March 13, 1911 (Laws 1911, p. 139), providing that in cases now and hereafter pending on appeal the bills of exceptions may be allowed by the trial court or judge and filed at any time before the appellant shall be required by the rules of the appellate court to serve his abstract of the record, and that no case now or hereafter pending in any appellate court shall be affirmed for failure to file a bill of exceptions within the time allowed by the trial court, but may be affirmed for failure to file a bill within the time in that section provided, if error do not appear in the record, does not apply to a case where the time to file a bill of exceptions allowed by the trial court had expired prior to its enactment.

2. CONTRACTS (§ 211)—TIME AS OF THE ESSENCE OF THE CONTRACT.

Plaintiff contracted to furnish and erect the cast-iron bases and steel construction work for an addition to a hotel 12 stories high, involving the use of nearly 666 tons of steel according to drawings and specifications furnished by the owner. The contract provided that, if the drawings and specifications should appear contradictory or contain apparent errors, the contractor must not attempt to adjust them himself but must refer the matter to the architect for adjustment; that all figures shown on drawings should be checked by the contractor before executing work, to the end that all work should be reconciled within itself and to adjoining work; that, if any portion or detail of the work should not be fully shown on the drawings or shown sufficiently clear for the proper execution of the work, the contractor must call for detail drawings; that such work executed without details or specific instructions, if not fully satisfactory to the architect, would be taken down and replaced at the contractor's expense; that the owner would have the excavation done and concrete beds prepared for the reception of cast-iron plates on a certain date; that the complete erection of the steel work should be finished by October 10th and should progress as nearly as practicable according to the limiting horizontal lines shown on the drawings relating to top levels of floor construction; and that any delays caused by the progress of the brick work should be taken into consideration and an equal time added to the date specified, plaintiff thus being required to await, not only the progress of others working on the building, but the pleasure and convenience of the architect in correcting and reconciling discrepancies existing in the plans or in the work of others. Held, that time was not of the essence of the contract, and hence a delay in completion did not prevent a recovery on the contract but merely entitled the owner to recover damages for the delay, since the law will not presume an intention to make time of the essence, unless there is something in the nature of the work making the completion at a particular time an element in its permanent value, or unless the date serves a temporary purpose that is an important inducement to the undertaking.

3. CONTRACTS (§ 213) — CONSTRUCTION — BUILDING CONTRACTS.

A provision of a contract to furnish and erect the steel construction work for a building that the contractor's proposition was based upon their statement that 90 per cent. of the steel involved was then in stock in their yards and should enter into such work was not a guaranty that 90 per cent. of the steel to be furnished and erected was then in the contractor's yards ready for shipment and erection where the material was to be fabricated into members of the structure from drawings made from the plans as the combined work developed.

4. CONTRACTS (§ 211)—TIME AS OF THE ESSENCE.

Where the parties to a contract agree that time shall be treated as an essential element of performance, such expressed intention will be enforced by the courts.

5. CONTRACTS (§ 211)—TIME AS OF THE ESSENCE.

Time will be presumed to be of the essence of a contract when it is known by both parties, at the time it is entered into, that without a strict performance in that respect the contract will not accomplish its ultimate object.

6. CONTRACTS (§ 211)—TIME AS OF THE ESSENCE.

Where a building contract provides that one party shall furnish valuable material and labor in the construction of a building for another which is completed in all respects according to the contract and accepted and used by the owner as an improvement designed for the benefit of his own premises, time will not be considered of the essence but will be presumed to have been entered into as an independent agreement, on account of which compensation in damages will put the owner in a position as favorable as would strict performance with respect to time.

7. CONTRACTS (§ 305)—DELAY IN PERFORMANCE —WAIVER.

Where time is of the essence of a contract, the failure to perform within the time stated may be waived like any other breach.

8. CONTRACTS (§ 345)—ACTIONS—PLEADING— WAIVER OF STIPULATIONS AS TO TIME.

In an action on a contract of which time is of the essence, where the answer pleads a breach of the stipulation as to time, a waiver may be and should be pleaded in the reply.

9. CONTRACTS (§ 345)—ACTIONS—PLEADING— WAIVER OF STIPULATIONS AS TO TIME.

In an action on a building contract, where time was not of the essence, it was proper to allege performance of the stipulations other than that as to time and the completion and acceptance of the building, pleading a waiver of delay in performance, and that such performance was due to defendant's fault in the reply to a counterclaim for damages caused by such delay.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by the Ottumwa Bridge Company against Bernard Corrigan and another. From a judgment for plaintiff, defendants appeal. Affirmed.

The petition, so far as is necessary to understand the questions presented in this appeal, is as follows:

"That on or about May 11, 1907, the defendant Bernard Corrigan, acting for himself personally and also as the agent and representative of the Corrigan Realty Company, made and entered into a contract with the plaintiff whereby said Bernard Corrigan, for himself personally and as the agent of said the Corrigan Realty Company, employed and engaged the plaintiff, Ottumwa Bridge Company, to furnish and erect for the said Bernard Corrigan and the said Corrigan Realty Company certain steel, iron, and other building material, and to perform certain labor in and about the erection and construction of an addition to the Baltimore Hotel, a building situated on Baltimore avenue between Eleventh and Twelfth streets in Kansas City, Mo., which said contract was in writing, a full and true copy of which is as follows, to wit:" Then follows a specification of cast-iron bases and steel construction work entering into an addition to the Hotel Baltimore, Kansas City, Mo.; the addition being a hotel structure 75×117 feet, of 11 stories and basement, together with an extension of the eleventh and twelfth stories over the existing building approximately 42×116 feet. It provides among other things:

"Should the drawings and specifications appear to be mutually contradictory in any part, or should there be apparent errors in either or in the figures on the drawings, the contractor must not attempt to adjust the same himself but must refer the matter to the architect for his adjustment. All figures shown on drawings shall be checked by contractor before executing work to the end that all work shall be reconciled within itself and to adoining work and trades. Should there be any portion or detail of the work not fully shown on the drawings or shown insufficiently clear for the proper execution of the work in a thoroughly first-class manner, the contractor must call for detail drawings of the same or specific instructions, and such work, executed without details or specific instructions and not fully satisfactory to the architect, will be taken down and replaced at the contractor's expense."

The time for completion of the work is stated as follows:

"The owner agrees to have the excavation done and concrete beds prepared for the reception of cast-iron plates on or before July 15, 1907, at which time the cast-iron bases will be delivered on the ground and shall be set by July 25th. The complete erection of the steel work shall be done and finished October 10, 1907, and shall progress as nearly as practicable according to the limiting horizontal lines on column sheet No. 11 relating to top levels of floor construction. Any delays caused by the progress of brick work shall be taken into consideration and an equal time to such delay shall be added to the above date of October 10, 1907."

The following proposal and acceptance, written on the specifications, are pleaded as the contract:

"Ottumwa, Ia., May 11, 1907. Mr. Bernard Corrigan, Kansas City, Mo.: We hereby propose to deliver and erect the steel and cast-iron work entering into the Baltimore Hotel, per drawings therefor prepared by Louis Curtiss, architect, and numbered 1 to 11 (identified with this proposal by our signature) and per the foregoing specifications including all clauses, stipulations and descriptions of labor and material contained therein, and according to the schedule of time noted on sheet 11, for the sum of sixty-seven ($67.00) dollars per ton of two thousand (2,000) pounds. The above proposition is based upon our statement that 90 per cent. of the steel involved is now in stock in our yards and shall enter into the above work. Ottumwa Bridge Co., by John Dittmann.

"Kansas City, Mo., May 11, 1907. I hereby accept the above proposition. Bernard Corrigan."

The petition then proceeds:

"Fourth. That in compliance with the terms of said contract...