Symms-Powers Co. v. Kennedy
| Decision Date | 21 March 1914 |
| Citation | 146 N.W. 570,33 S.D. 355 |
| Parties | SYMMS-POWERS CO. v. KENNEDY et al. [d] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lincoln County; Joseph W. Jones, Judge.
Action by the Symms-Powers Company against C. B. Kennedy, with which was consolidated an action by the Plumbing Supply Company against the same defendant. From a judgment establishing mechanics' liens in favor of plaintiff and the Supply Company, defendant Kennedy appeals. Judgment for Symms-Powers Company reversed, and that in favor of Plumbing Supply Company modified and affirmed.
C. B Kennedy and Brown & Brown, all of Canton, for appellant.
U. S G. Cherry, Herbert Abbott, and A. J. Keith, all of Sioux Falls, for respondents.
The Symms-Powers Company, as party of the first part, and one Kennedy as party of the second part, entered into a written contract wherein the company contracted to install a heating and plumbing system in an opera house then in course of erection by Kennedy; the contract price for installing both systems being one lump sum. The only provisions of this contract necessary to be noted are: (1) That the consideration for the installation of said plants was to be paid "provided that the party of the first part shall have furnished to the party of the second part a good and sufficient surety bond in the sum of one thousand dollars guaranteeing to the party of the second part that said heating plants is installed in accordance with this contract and the specifications thereto attached and will heat the buildings as therein provided, or, in default thereof in any respect, the party of the first part will, upon notice thereof and with all reasonable expedition, repair any defects in the installment thereof as shall be necessary to make it comply fully with this contract and specifications." (2) That, "if, upon full completion of the contract, any difference shall arise between the parties hereto as to the installation of the said plant complying with the plans and specifications, such difference shall be referred to a board of arbitrators"-such arbitrators to be chosen in the manner specified in said contract, and their decision upon the matter in dispute to be final upon the said parties.
Under this contract the Symms-Powers Company installed a heating and plumbing plant. The Plumbing Supply Company furnished all or a large part of the material used by the contracting company. The plants having been installed and the contract price remaining unpaid, each of said companies filed a mechanic's lien against the building and the lot whereon it was situate; the contracting company filing its lien in the full amount of the balance claimed to be due under the contract, the other company filing a lien in the amount claimed to be due it from the contracting company. Kennedy having notified each of said companies to bring an action to enforce its lien or else to satisfy the same of record, each company brought an action to foreclose its lien, in which action Kennedy and the other company were made defendants. It appearing that it was a proper case therefor, the trial court ordered the two actions to be consolidated and the issues tried in the action wherein the contracting company was the plaintiff. By a supplemental and amended complaint, the "Supply" company pleaded an error in the amount of its lien as filed and prayed that it be given a lien considerably in excess of the amount of the filed lien. Findings, conclusions, and judgment were entered in favor of the two companies; by such judgment the contracting company was given a lien for the full amount claimed less $120 deducted for failure to fully comply with its contract, but from the amount of such judgment the supply company was to be paid the full amount claimed by it. Kennedy appealed from such judgment and an order denying him a new trial. We shall first discuss this appeal as though the supply company had not been and were not a party to the action.
Plaintiff, in its complaint, alleged the entering into a written contract for the installation of the two systems and that it had performed the same in full; it pleaded no waiver of any condition thereof. Defendant, answering, after interposing a general denial, admitted entering into the contract, but alleged that the plaintiff did not perform the contract according to the terms thereof, and he set forth in considerable detail wherein the heating plant failed to comply with such contract. Defendant also alleged that plaintiff had failed, prior to bringing the action, to submit matters in difference to arbitrators. Defendant did not specifically plead the failure of plaintiff to furnish the bond hereinbefore mentioned.
Plaintiff introduced in evidence the written contract and proof of the installation of the two plants. It offered no proof that it had furnished the bond, or that it had offered to submit any differences to arbitration. There was no evidence to show that plaintiff was ever advised that defendant refused payment on the ground that the plants had not been properly installed. When plaintiff rested, defendant moved for a dismissal of plaintiff's complaint basing such motion upon plaintiff's failure to prove the giving of such bond, and upon its failure to submit matters in dispute to arbitration. The court overruled this motion. Defendant, at the opening of his defense, offered evidence to show that the bond had not been furnished. This was objected to upon the grounds, among others, that it was "in no way referred to in the pleadings," and that "it appears undisputed in the evidence, up to this stage, that the defendant waived any claim, and accepted the performance of the contract with the knowledge that the bond...
To continue reading
Request your trial