Schillinger Bros. & Co. v. Bosch-Ryan Grain Co.
| Citation | 122 N.W. 961,145 Iowa 750 |
| Parties | SCHILLINGER BROS. & CO., Appellant, v. BOSCH-RYAN GRAIN CO., JOHN A. GREEN, Intervener |
| Decision Date | 28 October 1909 |
| Court | United States State Supreme Court of Iowa |
AFFIRMED ON TUESDAY, FEBRUARY 15, 1910.
Appeal from Linn District Court.--HON. J. H. PRESTON, Judge.
THIS is a suit in equity, brought to recover for work done and material furnished in the construction of a concrete building to be used for a malting plant. The work and material were furnished under a written contract. The plaintiff also asked the foreclosure of a mechanic's lien thereon. The contract on which the suit was based, and under which the work was done, fixed the contract price at $ 72,000, to be paid in six equal installments as the work progressed. The first payment of $ 12,000 was to be made when the total walls, interior and exterior, had reached the height of fifteen feet above the top of the foundation walls, and one-sixth was to be paid on the completion of each twenty-five feet in height of all walls. The last installment was to be paid thirty-five days after the completion of the work. The contract also provided that, should payments become past due, it was optional with the contractor to continue or discontinue the work until such payment was made. The contract also provided that the contractor should give a bond in the sum of $ 25,000 for the faithful performance of his contract, but the premium for said bond was to be paid by the owner. The petition alleged a failure of the defendant to make a certain payment which was claimed to be due, and that by reason of such failure on the part of the defendant the plaintiff had elected to discontinue work under the contract. The defendant denied liability, and filed a counterclaim for damages in the sum of $ 57,000. The plaintiff's claim as made in its pleadings was for $ 20,000, and this sum was practically allowed by the trial court. The intervener, John A. Green, filed a claim for a mechanic's lien, which was allowed by the trial court, and his lien established on the defendant's property. The defendant appeals from the judgment of the trial court in establishing the liens referred to, and in giving the plaintiff judgment for any amount.
Affirmed.
C. J Laybourn, Dawley & Wheeler, and Crissman & Sargent, for appellant.
Chas A Clark and Daniel McCaskill & Son, for appellee.
There was a written contract between the parties for the construction of the buildings in question. It provided that there should be thirty-six rectangular bins in the storage house; that the bins in the workhouse should be as provided by the plans of the defendant; that the malthouse should contain certain germinating tanks, with necessary girders and columns to support the specified load intended, the central girders to have a span of twenty-two feet, with necessary angles for wind bracing and tying together the walls of the building, the same to extend through the tanks at intervals of about twelve feet, as specified by the plans of the defendant. The specifications as to the kilnhouse related to the strength and reinforcement of the floors only. The contract provided: "All concrete to be of one part Portland cement to two parts sand and four parts crushed stone, or one part Portland cement and six parts suitable gravel for the purpose and of equal strength with stone, thoroughly mixed and carefully placed so as to secure a thorough bond with reinforcing metal." It specified the thickness of the interior walls in the storage house, and provided that such walls should be "thoroughly reinforced with steel straps fourteen inches apart on centers, the size of such straps to be sufficient to give one and forty-five-one-hundredths percent of the sectional area of the wall for two-thirds of the height of the wall." It provided that all exterior walls, and the party wall separating the storehouse and the workhouse from the malthouse and kilnhouse, and the cross wall between the malthouse and the kilnhouse should be hollow, "but thoroughly bonded with concrete, so that the air space shall be three inches, all of said walls to be a thickness of fifteen inches." The foregoing are all of the detailed specifications of the contract material to an understanding of the case, but the contract further provided that "the contractor will submit to the owner detailed drawings showing dimensions and arrangement of parts before work is commenced on the part in question, such drawing supplementing those of the Bosch-Ryan Grain Company." And, further, "All work is guaranteed to be first-class, and may be tested with the full load for which it was intended thirty days after its erection, or any time thereafter, and any failure or weakness shall be made good by the contractor, including any damages caused by such failure."
The plaintiff pleaded full compliance with the terms of the contract up to the time of abandoning the work because of the defendant's failure to make the first payment according to the terms of the contract. The defendant in its answer and counterclaim denied that plaintiff had met the requirements of the contract, and said "that the work done by plaintiff on said structures is not first-class as required by said contract, and is not in compliance with the specifications of said contract, or with the drawings and plans and specifications referred to therein; that plaintiff has not used in said structures the kind or quality of material required by said contract, and has not used the material in the proportions as required by said contract that plaintiff has failed and neglected to furnish any bond for the performance of said contract as required thereby." With reference to the plaintiff's abandonment of the work the defendant pleaded "that, upon plaintiff making demand for the first installment under the contract, defendant denied that said installment, or any part thereof, had been earned or was due, and thereupon an oral agreement was made between plaintiff and defendant whereby defendant agreed to pay the first installment upon condition that plaintiff would produce and furnish to defendant receipted bills for the material purchased by plaintiff for said structures, which the plaintiff agreed to do; and under said oral agreement, and pursuant thereto, the defendant made the said payment of $ 5,000 to plaintiff, and plaintiff has wholly failed and refused to produce or furnish to defendant any receipted bills for such material, or any other evidence of payment therefor as agreed upon." It will be noticed that in...
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Schillinger Bros. & Co. v. Boschryan Grain Co.
...... the contract material to an understanding of the case, but the contract further provided that “the contractor will submit to the owner detailed drawings showing dimensions and arrangement of parts before work is commenced on the part in question, such drawing supplementing those of the Bosch-Ryan Grain Company.” And, further, “All work is guaranteed to be first class, and may be tested with the full load for which it was intended thirty days after its erection, or any time thereafter, and any failure or weakness shall be made good by the contractor, including any damages caused by such ......