Pittsburg Bridge Co. v. St. Louis Transit Co.

• Decision Date: 23 February 1909
• Citation: 116 S.W. 467,135 Mo. App. 579
• Parties: PITTSBURG BRIDGE CO. v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

116 S.W. 467

135 Mo. App. 579

PITTSBURG BRIDGE CO. v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. APPEAL AND ERROR (§ 994) — REVIEW — CREDIBILITY OF WITNESSES — WEIGHT OF TESTIMONY.

The credibility of the witnesses and the weight and value of their testimony is a question exclusively for the trial court.

2. APPEAL AND ERROR (§ 1010) — REVIEW — SUFFICIENCY OF EVIDENCE.

Substantial evidence in support of the finding of the court is sufficient.

3. CONTRACTS (§ 300) — TIME OF PERFORMANCE—EXTENSION—DEMAND OF STRICT PERFORMANCE—WAIVER OF TIME PROVISIONS.

Where a contract contains no stipulation for an extension of time for performance, the party who demands of the other strict performance as to time must perform all conditions on his part requisite to enable the other to perform, and his failure to do preliminary work, such as erecting a foundation, to enable the other to complete the work within the limit, operates as a waiver of the time provisions.

4. CONTRACTS (§ 143)—RIGHTS OF PARTIES— HOW DETERMINED.

If not opposed to good morals or public policy, the contract furnishes the rule by which the respective rights of the parties are to be determined.

5. CONTRACTS (§ 300) — PERFORMANCE — EXTENSION OF TIME — STIPULATIONS — VALIDITY.

A building contract provided that, if the foundation walls were not entirely completed and ready for the iron work at the time agreed on, the contractor should have an extension of time for the completion of the work equal to the number of days the owner should be in default with the foundation walls, and that, in event the owner was in default in completing the foundation, it assumed the obligation to notify the contractor, at least, 10 days before it should be required to commence to erect the structure. Held, that such stipulations were reasonable and just, and, until the owner performed by completing the foundation and giving notice to that effect as required, there was no obligation on the part of the contractor to proceed.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by the Pittsburg Bridge Company against the St. Louis Transit Company.

From a judgment for plaintiff, defendant appealed to the Supreme Court, which certifies the cause to the Court of Appeals. Affirmed.

See, also, 205 Mo. 176, 103 S. W. 546.

Boyle, Priest & Lehmann and Crawley & Jamison, for appellant. Abbott & Edwards, for respondent.

NORTONI, J.

This is a suit by a contractor for the balance due on a building contract. The contract contained a provision to the effect that, if the work was not completed by the 15th day of August, the defendant owner should be entitled to $50 per day as liquidated damages for delays after the date mentioned. It appears that the plaintiff's claim is conceded. The defendant counter-claims for the amount of $4,300 alleged to have accrued to it as liquidated damages because of 86 days' delay after August 15th in completing the building. The cause was tried before the circuit court without a jury. Plaintiff recovered the full amount sued for. The court found, however, for the defendant on the counterclaim to the extent of 37 days' delay, and on account of such delay, diminished plaintiff's claim at the rate of $50 per day, in all $1,850. From this judgment the defendant appealed to the Supreme Court. That court determined it was without jurisdiction in the premises, and therefore certified the cause here. The reasons therefor will appear by reference to Pittsburg Bridge Co. v. St. Louis Transit Co., 205 Mo. 176, 103 S. W. 546. It appears from the written contract in evidence that the plaintiff agreed and undertook to furnish the steel and iron, and to erect a structure for an engine room, pumproom, and boiler house for defendant in the city of St. Louis. Plaintiff agreed to complete the work by the 15th day of August, while among other things the defendant agreed on its part to erect and complete the foundations for the buildings by the 15th day of July. It is also stipulated, in event the foundation walls were not completed by July 15th, the plaintiff should have an extension of time for the completion of the work on its part equal to the number of days the defendant was in arrears in completing the foundation walls; and, further, if defendant failed to complete the foundations by the 15th day of July, it would notify the plaintiff contractor when completed at least 10 days before it should be required to proceed with the work on its part.

As before stated, the contract contained a stipulation for liquidated damages in the sum of $50 per day for each and every day the plaintiff was in default after August 15th in completing the work. It was admitted on the trial that the plaintiff was 86 days in default when the work was finally completed. There is no controversy whatever about this matter. The entire controversy in the case arises with respect to whether or not there was just cause shown for 49 days of the delay. As before stated, the circuit court found that, although the plaintiff consumed 86 days beyond the time limit to complete the work specified in the contract, it was justified to the extent of 49 days' delay because of the default of the defendant in completing the foundation walls and the consequent 10 days' notice due plaintiff...