Pulaski Nat. Bank v. Tilghman Moyer Co., 4426.

• Decision Date: 12 June 1939
• Docket Number: No. 4426.,4426.
• Citation: 104 F.2d 471
• Parties: PULASKI NAT. BANK v. TILGHMAN MOYER CO.
• Court: U.S. Court of Appeals — Fourth Circuit

104 F.2d 471 (1939)

PULASKI NAT. BANK v. TILGHMAN MOYER CO.

No. 4426.

Circuit Court of Appeals, Fourth Circuit.

June 12, 1939.

Howard C. Gilmer, Jr., and O. C. Brewer, both of Pulaski, Va., for appellant.

T. X. Parsons, of Roanoke, Va. (W. H. Colhoun, of Christiansburg, Va., and Showalter, Parsons, Kuyk & Staples, of Roanoke, Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is a suit in equity brought in October, 1937, by the appellee, Tilghman Moyer Company, here referred to as the plaintiff, against the appellant, Pulaski National Bank, here referred to as the defendant, in the District Court of the United States for the Western District of Virginia, at Roanoke. The object of the suit was to enforce a mechanic's lien in the sum of $3,732.15, with interest, balance alleged to be due for work done on the bank building of the defendant. In answering the bill the defendant filed a counterclaim and setoff against the plaintiff company and a bill of particulars was filed setting out a claim of $7,500 for defective cabinet work and inferior materials, a claim of $2,500 for loss due to delay in completion of the work, and a claim of $3,000 for damages to the acoustics of the banking room.

The defendant filed a motion to dismiss the bill or else transfer the cause to the law side of the court or, if it should be retained as an equity cause, that an issue out of chancery be ordered to try the issues of fact before a jury. The plaintiff filed its answer to the counterclaim, denying any liability as to any of the items thereof. The court overruled the defendant's motion to dismiss as well as the motion for a jury trial and the cause proceeded to a hearing before the court without a jury, to which there was no objection, evidence being taken on behalf of both the plaintiff and the defendant. At the conclusion of the hearing the judge below rendered a written opinion finding for the plaintiff, and against the defendant on all items of the counterclaim. In September, 1938, a decree was entered in accordance with the opinion. From this action this appeal was brought.

The plaintiff entered into a written contract with the defendant for the remodeling of its bank room at Pulaski, Virginia. The contractor was to furnish all labor and materials and the contract price was $17,500, which included a fee of $2,100 to the contractor; the contract provided that if the actual cost plus the fee of $2,100 was less than the contract price then the difference was to be refunded to the bank. The work was to be finished within a certain specified time. Payments were made from time to time as the work progressed and when completed it was found that the actual total cost of the work had been...