Simpson Bros. Corporation v. John R. White & Son, Inc.

• Citation: 187 F. 418
• Decision Date: 16 January 1911
• Docket Number: Law 2,917.
• Parties: SIMPSON BROS. CORPORATION v. JOHN R. WHITE & SON, Inc.
• Court: U.S. District Court — District of Rhode Island

187 F. 418

SIMPSON BROS. CORPORATION v. JOHN R. WHITE & SON, Inc.

Law No. 2,917.

United States Circuit Court, D. Rhode Island.

January 16, 1911

Powers & Hall, A. C. Matteson, and William J. Brown, for complainant.

Henry W. Hayes, for defendant.

BROWN District Judge.

This is an action at law, wherein the plaintiff seeks to recover a balance alleged to be due upon a contract under seal for the construction of a reinforced concrete coal pocket for the defendant, John R. White & Son, Incorporated, at Providence R.I. The case was heard by the court; jury trial being waived.

Of the contract price, $29,000, the plaintiff has received $19,103.25, and claims the balance, $9,896.75, with an additional sum of $142.35 for extra steel, with interest. The defendant disputes the claim for extra steel, and claims the following deductions from the contract price:

The sum of $664.54, by reason of agreed changes in plan for foundation, requiring less material.

The sum of $360.70 for charges and expenses of engineer and inspector, due to imperfect work by the plaintiff.

The sum of $7,100 for delay in the completion of the work from November 30, 1906, to May 27, 1907, according to article 6 of the contract.

The defendant states the account as follows:

Balance of contract price .............

$9,896 75

Deductions .................

$ 664 54

360 70

7,100 00

--------

8,125 24

--------

Balance due .......................

$1,771 51

As to the plaintiff's item of $142.35 for extra steel, the testimony and exhibits show a repeated and consistent refusal of the architect to authorize this work at the expense of the owner, and that the defendant was expressly notified in writing that if changes were made they were to be at the contractor's expense. This claim is disallowed as without merit, and as precluded by article 3 of the contract.

The defendant's claims for deduction:

It is agreed that the original plans for the foundation were so modified by mutual consent as to require less material. The contract provides in article 1:

'If more or less concrete is required in foundations, it shall be added to or deducted from the contract price at a unit price of $6 per cu. yd.'

As the parties are in substantial agreement as to the number of cubic yards, and as to their calculations differ only in cents, I find that the defendant is entitled to a deduction of $201.84 in accordance with article 1.

The defendant also claims a further deduction for a saving in steel by changes of plan for the foundation.

The plaintiff contends that the term 'concrete,' in article 1, means reinforced concrete, and that the agreed sum of $6 per cubic yard includes steel, as well as mixed concrete.

The only clause in the contract bearing upon this is:

'Article 1. The contractor shall and will provide all the materials and perform all the work for the construction of coal pocket at Providence, R.I., as follows: Excavation for foundations; the building of the concrete work; the wooden roof and sides; the timber work for tracks and walks, etc.'

The term 'concrete work,' in this clause apparently means that part of the structure which is composed of steel and mixed concrete; i.e., reinforced concrete.

The plaintiff's interpretation gives the term 'concrete' the same meaning in all clauses of article 1, and provides a simple rule of compensation for additions or deductions.

By the defendant's interpretation, upon a change of the amount of reinforced concrete, the allowance is to be figured by separating the compound structure into two parts, the mixed concrete and the steel embodied in it, and multiplying the number of yards of mixed concrete by 6.

The difficulty with this interpretation is that the contract then fails to provide a measure of compensation for the additions or deductions of steel which necessarily accompany additions or deductions in reinforced concrete.

As the matter was left upon the hearing, the proofs in the case afford little aid in interpreting the contract. The specifications are not in evidence. There is no testimony tending to show why the sum of $6 per cubic yard was fixed by the contract, or that it was not an adequate allowance for reinforced concrete.

Upon the defendant's claim that the total amount of material saved by changes of plan was $664.54, it might be argued that an allowance of $201.84 was so inadequate as to show that the defendant's interpretation of the contract leads to a result so unjust that it could not have been the true intent of the parties. This argument, however, is based largely upon disputed testimony, since the plaintiff contends that the total saving of materials was, in fact, but $360.54.

Upon weighing the testimony, I am unable to find that according to a preponderance of proof the actual saving was more than $360.54. The discrepancy between this sum and the sum to be allowed according to the terms of the contract as interpreted by the plaintiff is substantial, but is hardly conclusive.

The defendant contends that as a matter of fact the changes in the foundation or mat were contemplated and agreed upon at the time of signing the contract, and that the special clause concerning allowances was inserted in special view of the proposed changes. If this is the case, it is more probable that the clause was intended to provide a measure for computing the value of all the proposed changes, rather than of a part.

While the question is not free from doubt, I find that the contract provides a rate of compensation for all additions and deductions in the amount of reinforced concrete at $6 per cubic yard, and that a proper mode of fixing this is to find the difference between the number of cubic yards of reinforced concrete in the amended plans and in the original plans, and to multiply this by 6.

The defendant's claim of $664.54 is disallowed, except as to the amount of $201.84.

The item of $360.70, claimed by the defendant for expenses of inspector and of engineer in superintending repairs required by imperfect work, must be disallowed. Article 2 provides that the work is to be done under the direction of the architect, and that all charges for the services of the architect are to be paid by the owner.

Article 4 gives to the architect authority to condemn materials, worked or unworked, and provides that the contractor shall take down all portions of work condemned by the architect as unsound or failing to conform to drawings and specifications, and shall make good all work damaged or destroyed thereby. The contractor's obligation is discharged when he makes good the work condemned, and I know of no principle, legal or equitable, which justifies the charge for an inspector to follow the work merely to see if the contractor is fulfilling his agreement. The condemnation of imperfect work is a part of the contemplated service of the architect, which the contract provides shall be paid by the owner.

The deduction of $7,100 for delay is based upon article 6:

'Art. 6. The contractors shall complete the several portions and the whole of the work comprehended in this agreement by and at the time or times hereinafter stated, to wit:

'The pocket shall, in the opinion of the engineer, Adolph Suck, be completed on Friday, November 30, 1906; it being understood that for a period of two weeks after the time of said completion, coal shall not be put into it in excess of one-half of its full capacity. The term 'completed' is to be construed to mean in condition to put coal in and take coal out of it in proper condition.

'For each and every working day prior to the date named that it is completed as described above, said John R. White & Son, Incorporated, agrees to pay to said Simpson Bros. Corporation at the rate of $100 per week; and for each day that its completion is delayed beyond the date named the contractor shall pay the owners at the rate of $100 per week, and on and after Friday, December 14, 1906, at the rate of $300 per week until it is completed as described above.'

It is conceded by both parties that the coal pocket was not completed, in the sense of that term as defined in the contract, at the agreed date, November 30, 1906. There is a direct conflict as to the date of such completion. The plaintiff contends that the pocket was so completed on January 29, 1907. The defendant admits, for the purposes of the case, that the building was completed on May 27, 1907.

The provision:

'The pocket shall, in the opinion of the engineer, Adolph Suck, be completed on Friday, November 30, 1906'

-- while peculiar in expression, seems clear in meaning, and to give the architect or engineer, Adolph Suck, the power to pass upon this question of completion.

The plaintiff has failed to show the acceptance by the architect of the work as completed to the extent provided for in article 6 at any date prior to May 27, 1907. At the trial Mr. Suck, the architect, testified that in his opinion the pocket was not completed in conformity with article 6, and was not in a condition to receive coal, before May 27, 1907. He further testified, in relation to plaintiff's claim that the pocket was completed January 29, 1907, that concrete was poured by the contractor two weeks before that date, in winter weather.

The plaintiff produced as a witness Mr. Joseph R. Worcester, who testified that upon an examination of the pocket on March 12, 1907, he found the concrete sufficiently strong, and that as the average temperature was below freezing from January 29, 1907, to the date of his examination in March, he concluded that the concrete must have set before January 29th.

Mr. L B. Murray testified that at a late date in April, 1907, in presence of Mr....