Peck-Williamson Heating & Ventilating Co. v. McKnight & Merz

• Decision Date: 09 August 1918
• Citation: 205 S.W. 419,140 Tenn. 563
• Parties: PECK-WILLIAMSON HEATING & VENTILATING CO. v. MCKNIGHT & MERZ ET AL.
• Court: Tennessee Supreme Court

205 S.W. 419

140 Tenn. 563

PECK-WILLIAMSON HEATING & VENTILATING CO. v. MCKNIGHT & MERZ ET AL.

Supreme Court of Tennessee.

August 9, 1918

Appeal from Chancery Court, Madison County; J. W. Ross, Chancellor.

Bill by the Peck-Williamson Heating & Ventilating Company against McKnight & Merz and others. From a decree declaring a lien in favor of complainants, both parties appeal. Reversed, and bill dismissed.

D. W Herring, of Jackson, for complainant.

R. F Spragins, of Jackson, for defendants.

NEIL C.J.

The original bill was filed against McKnight & Merz and D. L Williamson to enforce a mechanic's lien on the Lyric Theater, in Jackson, Tenn. The lien asserted was based on a contract made with McKnight & Merz on July 9, 1913. Williamson was made a defendant because, after the making of the contract, he purchased the property from McKnight & Merz and to enforce a contract he made with complainant.

The first contract provided that the complainant should furnish to McKnight & Merz a heating and ventilating equipment for the sum of $1,500. This contract, after specifying the main parts of the equipment, consisting of two furnaces, a blower, a fan connected directly with a motor, also a motor and belt, added as other things to be furnished:

"Galvanized iron heat risers, basement heat pipes, mixing valves, volume dampers, I-beams, bearing bars, V-crimped covering of iron and steel partitions, smokepipe, grills for vent and heat openings, and other materials, and labor necessary to install the heating and ventilating plant according to his [McKnight & Merz's] plans in the Lyric Theater Building for second party."

Half of the consideration was to be paid when the equipment was delivered, and the balance upon completion of the work; the plant to be tested by the complainant's superintendent and found in good working order in the presence of McKnight & Merz.

The contract also provided that McKnight & Merz should furnish at their own expense materials and labor necessary for excavation, masonry, cement, carpenter, and lath and plaster work in connection with the installation of the heating and ventilating plant, and should also bring the electric wires for the motors to the basement of the building.

The complainant guaranteed that the equipment, materials, and workmanship should be first class, and that shipment should be made in ample time, "and installation upon due notice from second party [McKnight & Merz] that he is ready for same."

The contract also provided that McKnight & Merz were to receive the equipment and materials upon arrival in the Jackson freight station, pay the freight and drayage, and have the same delivered on the building premises, or in the building, and properly cared for until the arrival of the complainant's workmen, deducting the freight, and the handling charges from the contract price, and that these were to be credited thereon.

The contract also contained this provision:

"First party further guarantees that the complete plant, when operated to instructions, will be efficient as follows: (1) Deliver 9,480 cubic feet outside air per minute to building. (2) Exhaust 9,000 cubic feet of air from the building per minute. (3) Change air in the building 4 1/2 times per hour. (4) Maintain 60 degrees temperature Fahrenheit in building when the outside air is 10 degrees below zero; doors and windows to be properly fitted and kept closed, except ingress and egress."

The work seems to have been done to the satisfaction of McKnight & Merz, and they issued the complainant a check for the amount due, but the check was not paid.

Defendant Williamson bought the property before any of the material was delivered in the building or on the property, but after the motor had been delivered at the freight depot in Jackson. No formal notice was given to the defendant Williamson by the complainant, but he was present from time to time during the progress of the work, in the installation of the equipment, and had as full knowledge as any notice could have given him. At least on one occasion he gave directions about the disposition of certain parts of the equipment. Under the contract between him and McKnight & Merz the latter were to provide the heating and ventilating plant and to pay for it, Williamson taking a bond to fully protect himself against the lien.

After the check given by McKnight & Merz for the equipment, had been turned down at the bank the original bill was filed to enforce the lien.

Among the defenses made by Williamson was one to the effect that the equipment did not properly heat the building; that the greater part of the heat rose to the top of the auditorium, leaving the lower part cold and making the upper part too hot.

The complainant's reply to this contention was in effect that the equipment performed accurately the requirements made of it in the contract, and that the contract contained no provision that the heat should be evenly distributed through the auditorium; that McKnight & Merz wanted a cheap equipment, and they were given just what they contracted for. This contention seems to be sustained by the evidence.

Defendant Williamson was left in this situation. He had bought the property from McKnight & Merz, and it was heated in such a manner as that it was not comfortable to his patrons. Therefore he and the complainant entered into a contract as between themselves. This contract is in the following language:

"This agreement, this day, by and between the Williamson Heater Company, of Cincinnati, Ohio, party of the first part, and D. L. Williamson of Jackson, Tennessee, party of the second part, witnesseth:

(1) Party of the first part agrees to furnish the material and labor and to make certain changes and alterations in the heat and ventilating plant in the Lyric Theater, in Jackson, Tennessee, as follows, to wit: Take down the galvanized iron connection to the present 42"'X42"' grills on each side of the stage, and turn G. I. elbows through the first wall panels on either side of the stage, so that the two outlets will come out under the balcony, so as to direct and force the two currents of air towards the rear of the house at such an angle as to make them converge at a point underneath the rear of the balcony. These two heat outlets will be covered with wire grills approximately 30"'X60"' and will be equipped with adjustable louvre dampers behind the grills, so that the air can be deflected at different angles toward the floor if desired. These two G. I. connections will be painted with lead and oil to match as nearly as possible the color and tinting of the surrounding walls; also to run a 20"' 20"' G. I. connection between the furnaces and the underfloor 20"'X20"' concrete duct which connects with the two floor registers near the entrance doors, this duct to be provided with suitable dampers. Party of the first part will also readjust the alignment of the motor driving the fan, and will also install two G. I. ventilators approximately 36"' in diameter in the roof above the rear of the balconies, furnishing same with dampers and chains for operating them. All of said additions and changes shall be made in a workmanlike manner and out of first-class material, and to be completed on or before the 21st day of December, 1914. Party of the first part further agrees that, in performing said work, all proper and reasonable precautions will be used to prevent and avoid injuries or damage to the building, and that all damaged places will be repaired.

(2) After the above-mentioned work is completed, party of the first part guarantees that the heating plant, when properly operated, will heat the main or first floor part of the said theater to a reasonably uniform temperature of 70~ F. in zero weather, and that at the same time the rise in temperature in the balcony or second floor of the building will not be more than 10~ above the temperature on the main or first floor.

(3) After the performance of said work and the fulfilling of said conditions, party of the second part agrees to pay to party of the first part the sum of two hundred dollars ($200.00), which shall be applied by party of the first part as a credit on its claim against McKnight & Merz for the contract price of the heating plant installed in said theater by party of the first part under contract with said McKnight & Merz. The plant is to be tested and the said sum of two hundred dollars ($200.00) paid by the party of the second part to party of the first part within 30 days after said additions and changes have been completed by the party of the first part.

(4) And party of the second part further agrees that, if he is satisfied with said heating and ventilating system after the completion of said work and testing of said plant, he will pay by not later than February 25, 1915, to party of the first part, the balance due on said original contract price, to wit: One thousand forty dollars and sixty-four cents ($1,040.64), which shall be received by party of the first part in full of all demands against party of the second part, as well as against McKnight & Merz, under the original contract with them for the installation of said heating and ventilating plant, and will surrender and discharge any mechanic's lien claimed by party of the first part for work done or material furnished in installing said plant.

(5) In performing the work herein contemplated, party of the first part agrees that the same shall be commenced and carried on at such times as will not interfere with the dates for shows now booked for said theater.

(6) If said heating and ventilating system shall not for any reason fulfill the conditions in paragraph (2) above, said party of the second part shall immediately notify party of the...