Roberts v. Robertson

• Decision Date: 17 February 1958
• Docket Number: No. 40674,40674
• Citation: 232 Miss. 796,100 So.2d 586
• Parties: John S. ROBERTS & Standard Accident Insurance Company, v. John B. ROBERTSON, Jr.
• Court: Mississippi Supreme Court

Page 586

100 So.2d 586

232 Miss. 796

John S. ROBERTS & Standard Accident Insurance Company, v.John B. ROBERTSON, Jr.

No. 40674.

Supreme Court of Mississippi.

Feb. 17, 1958.

Owen Roberts, Brookhaven, for appellants.

Jones & Stratton, Brookhaven, for appellee.

GILLESPIE, Justice.

Appellee, John B. Robertson, Jr., doing business as Brookhaven Roofing and Sheet Metal Works, filed suit against John S. Roberts, doing business as Roberts Plumbing company, and Standard Accident Insurance Company, surety on the performance bond of Roberts, to recover for an alleged breach by Roberts of a sub-contract.When appellant is used herein, it refers to John S. Roberts.

Appellant Roberts filed an answer and cross-bill, and upon the trial of the issues, appellee was granted substantially all of the relief prayed for.

Some of the facts are in sharp dispute, and as to all issues where appellee prevailed, the facts are stated in the light most favorable to appellee.

The First Baptist Church of Brookhaven, Mississippi, undertook to construct an addition to the Church, an educational building, and to that end had its architect, Charles H. Dean, Jr., prepare plans and specifications.Some time prior to February 1954, the Church awarded certain contracts, including one to appellee, which was the prime contract for all heating and air conditioning for the sum of about $47,700.In February 1954, appellee entered into a sub-contract with appellant for certain piping, the pertinent provisions thereof being as follows:

'The Sub-Contractor shall furnish all labor and materials and perform all work for piping of air conditioning system in strict accordance with plans and specifications, general conditions, special conditions and Addendum 1 of Charles H. Dean, Jr., Jackson, Mississippi, for Educational Building including additions and alterations First Baptist Church, Brookhaven, Mississippi.Performance of work to be in such manner as to avoid delay in progress of job, for the sum of: ($2665.17) Twenty Six Hundred Sixty Five Dollars and Seventeen Cents.'

The specifications prepared by Charles H. Dean, Jr., Architect, for the First Baptist Church, provided, among other things:

'18.Heating and Cooling Pipe:

'a.All heating and cooling pipe shall be standard weight black steel with cast iron fittings.

'20.Heating and Cooling Pipe Covering:

'a.Will lines for heating only are to be covered with 4 ply asbestos air cell sectional covering with all joints sealed and each section banded in place.Cover valves and fittings with plastic asbestos cement and cover with 8 oz. canvas pasted on.

'b.All pipes used for combination heating and cooling shall be covered with Johns-Manville 1 1/2" Sectional antisweat pipe covering: Seal all joints and band in place.'

Appellant undertook the work called for in the contract, beginning in March 1954.About May 1954, appellant changed foremen on the job and at that time some of the piping and some of the insulation had been installed, but this was improperly done and had to be taken out and done over.A few days before November 20, 1954, appellant's foreman, Henry, who had authority to do so, informed appellee that appellant was through and any further work done by appellant on the job would be for additional compensation.At that time, appellant had not completed installing the pipe and there was a substantial amount of work to be done in installing the pipe.Appellee then informed appellant's foreman that if they were through 'to get their tool box and get out,' which they did.

Shortly thereafter, appellee employed another firm to complete the installation of the pipe and complete the insulation of the pipe at a cost of $2,499.99.At the time appellant abandoned the job, he had been paid on his contract the sum of $1,658.35.Appellant performed certain other work for appellee in assembling a boiler and installing a compressor and to recover this amount was one of the objects of the cross-bill filed by appellant.The contract and the performance of the same for assembling the boiler and installing the compressor was made within a few weeks prior to November 20, 1954, and was an oral contract called extra work.A stipulation was entered between appellant and the appellee with reference to the labor performed by appellant in assembling the boiler and installing the compressor and it was agreed that as to that item appellant owed appellee the sum of $123.22.There was dispute as to whether any materials were used on that extra work and the court as to that item found that appellee owed appellant $316.70 for materials used in assembling the boiler and installing the compressor.

At the time appellant terminated the written contract shortly before November 20, 1954, appellant had expended an amount considerably in excess of the contract price of $2,665.17.It is apparent that appellant underbid the contract.The decree entered by the chancellor gave judgment for appellee against appellant and his surety for $1,053.25, arrived at as follows:

Amount paid appellant on written contract when the contract            $1658.35
                  was terminated
                Amount expended by appellee to complete written contract                2499.99
                                                                                       --------
                Total                                                                  $4158.34
                Total amount of written contract                             $2665.17
                Labor assembling boiler and installing compressor, extra      $123.22
                  work on oral contract, per stipulation
                Materials furnished by appellant in assembling boiler and      316.70
                  installing compressor, extra work
                                                                             --------
                Total

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