The Berger Manufacturing Co. v. Crites

• Decision Date: 02 March 1914
• Citation: 165 S.W. 1163,178 Mo.App. 218
• Parties: THE BERGER MANUFACTURING COMPANY, Appellant, v. FREDERICK H. CRITES, Respondent
• Court: Kansas Court of Appeals

165 S.W. 1163

178 Mo.App. 218

THE BERGER MANUFACTURING COMPANY, Appellant, v. FREDERICK H. CRITES, Respondent

Court of Appeals of Missouri, Kansas City

March 2, 1914

Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.

AFFIRMED.

Judgment affirmed.

New & Krauthoff, John Taylor, C. Edwin Cooley, John N. Davis, and P. E. Reeder for appellant.

Ed. E Naber, Ben T. White and R. J. Smith for Respondent.

OPINION

JOHNSON, J.

--This is an action to recover a remainder of $ 1531.79, due upon an account for certain patented building materials sold and delivered by plaintiff, a manufacturer in Canton, Ohio, to a firm of building contractors in Kansas City, composed of defendant and Frank R. Beatty. Both members of the partnership were sued by plaintiff but service could not be obtained upon Beatty and the action proceeded against defendant Crites alone who filed an answer and counterclaim. At the conclusion of the evidence the court instructed the jury to find for plaintiff for the full amount of the demand in the petition and submitted certain issues of fact relating to the counterclaim which were resolved by the jury in favor of defendant. The verdict was for plaintiff on the petition for $ 1531.79, for defendant on the counterclaim in the sum of $ 1800, and ended with the recital "deducting the lesser amount from the greater we find the issues for the defendant in the sum of ($ 268.21) two hundred sixty-eight dollars and twenty-one cents." Afterward defendant, in obedience to a peremptory suggestion from the court on the hearing of the motion for a new trial, entered a remittitur in a sum sufficient to equalize the claim of plaintiff and counterclaim of defendant, and judgment was rendered accordingly. Plaintiff appealed.

The Board of Education of Winfield, Kansas, let the contract to Crites and Beatty for the construction of a large school building for which plans and specifications had been prepared by architects in Kansas City and accepted by the board. The building was to be fireproof and the specifications called for concrete floors in the rooms, halls and corridors and gave the general contractors the option of "using the Berger metal lumber, or any other patented system of fireproofing in place of the system shown and specified providing there are sufficient details and specifications filed with the proposals to permit them to form an accurate opinion of the method contemplated and also to ascertain whether the system is durable and sufficient. "

The Berger system had been on the market about three years and the inventor was the manger of plaintiff's "metal lumber department." He examined the plans and specifications of the school building before submitting a bid to Crites and Beatty for the installation of his system in place of the reinforced concrete floors for which the specifications included details. The essential difference between reinforced concrete and plaintiff's "metal lumber" construction is that in the former the tension is divided between the concrete and steel rods it embodies while in plaintiff's system, the concrete is laid on a steel substructure and is not intended or relied upon to take any of the tension which, including the weight of the concrete, is borne entirely by the "metal lumber."

The inventor thus describes the system: "The Berger fireproofing system, known as metal lumber, and which is referred to in this case, consists of pressed steel sections, with bearings, such as I-angles, T's and so forth--and is designed to take the place of wooden joists--they are used as joists, and placed sixteen inches on center--both in the joists and studs. On the top is used an expanded metal lath, ranging from number twenty to number twenty-four gauge, and the bottom of the joist is arranged with prongs, by means of which the ceiling metal lath, of number twenty to number twenty-four gauge iron is attached. That is used in all of these plans. In the joist proper, the joist is provided with bridging. The joist consists of two sections, riveted back to back. Between these rivets there is an aperture formed by the joist going back to back; and in that a nail can be placed, the same as in a wall, and a nail can be driven in that. The bridging comes in twenty-inch iron--which is a tension bridging--and should be nailed in between the joists; and by nailing this one in the other, you get a construction which is provided for three purposes--first, it is to hold the joists in line, in a vertical position, and afterwards the means of transferring any contingency loads on the joists to the joists beside it. Now, the joist lath and bridging constitutes the floor. The studs or columns of the construction also acts as bridging."

Reduced to a more concise description the bed for holding the concrete is a reticulated steel mesh supported by steel joists or "I" beams.

The bid of plaintiff to furnish the materials for the floors for $ 12,000 was accepted by the contractors and the materials were delivered by plaintiff and put into the building by the contractors who mixed and laid the concrete in accordance with the requirements of the specifications. The concrete thus laid proved a failure, as the evidence of defendant tends to show, in two particulars, viz., first, on account of the lightness of the "metal lumber," the bed sagged under the weight of the concrete which did not exceed the thickness prescribed in the specifications and thereby caused the concrete floor to crack in various places and, second the spreading of thin concrete over a sievelike bed with nothing underneath to prevent drainage caused the water to drain away from the admixture and prevent the necessary coalescence of...