Thompson v. St. Charles County

• Decision Date: 31 March 1910
• Citation: 227 Mo. 220,126 S.W. 1044
• Parties: THOMPSON v. ST. CHARLES COUNTY.
• Court: Missouri Supreme Court

126 S.W. 1044

227 Mo. 220

THOMPSON v. ST. CHARLES COUNTY.

Supreme Court of Missouri, Division No. 1.

March 31, 1910.

1. TRIAL (§ 143) — QUESTIONS FOR JURY — CONFLICTING EVIDENCE.

Where plaintiff's evidence was contrary to the tendency of defendant's evidence on a question of fact, the question was properly submitted to the jury.

2. CONTRACTS (§ 346) — ACTIONS — PLEADING — WAIVER OF BREACH — NECESSITY.

As a rule, except in actions on insurance policies, in an action on a contract, where performance of conditions precedent is denied, waiver of such performance must be pleaded by plaintiff to be available, so that in an action on a construction contract where plaintiff pleaded performance, which the answer denied and set up delay in completion, plaintiff could not show, without pleading it, waiver of a provision of the contract that no extension of time should be allowed unless a request was made therefor in writing by the contractor and the extension awarded by the owner's superintendent.

3. CONTRACTS (§ 127) — VALIDITY — CONSTRUCTION CONTRACT.

A provision in a construction contract, providing for the allowance of additional time for completion in the event of delays from certain causes, but that no extension should be made unless a claim was presented in writing at the time of the delay, when the owner's superintendent should certify the additional time to be allowed, but permit the contractor to appeal from such award to arbitrators selected as provided, was not contrary to good morals or public policy, even if it made the owner's superintendent the final judge as to the time allowed as extensions, his award being binding if not made through fraud, mistake, or made arbitrarily.

4. COUNTIES (§ 207) — SUFFICIENCY — PAYMENT BY COUNTY WARRANTS.

Since in view of Rev. St. 1899, §§ 6790, 6792, 6793, 6796, etc. (Ann. St. 1906, pp. 3336-3338), county warrants are the only legal means of paying funds from the county treasury, such statutes must be read in to a contract with a county for the construction of a courthouse so that payment under the contract by county warrants will be sufficient, though the contract did not actually provide for payment in that manner.

5. TENDER (§ 15) — ESTOPPEL BY CONDUCT — ACCEPTANCE OF PAYMENT.

Where the only objection made upon the tender of county warrants in payment of an indebtedness for the construction of a courthouse

house was as to the amount tendered and not as to the medium of the tender, the payee cannot afterwards object to the insufficiency of the tender on the ground that county warrants were not legal tender.

6. DAMAGES (§ 76) — LIQUIDATED DAMAGES — PENALTIES — CONSTRUCTION OF CONTRACT.

In determining whether a provision for damages upon breach of a contract is a penalty or liquidated damages, each case must be determined upon its own facts, the intent of the parties as gathered from their language and the nature of the contract being the controlling element, but courts incline to construe a provision as a penalty instead of liquidated damages, at least in cases of doubt or where a strict construction would work absurdity or oppression, or where actual damages can be assessed by known rules or with reasonable certainty.

7. DAMAGES (§ 78) — LIQUIDATED DAMAGES — BUILDING CONTRACTS.

A provision in a contract for building a county courthouse for the sum of $37,349 that the contractor should pay the county as liquidated damages $10 for every day the completion of the building was delayed after the contract date of completion was valid as a provision for liquidated damages, and was not a penalty.

Appeal from Circuit Court, Lincoln County; Jas. D. Barnett, Judge.

Action by John W. Thompson against St. Charles County. From a judgment for plaintiff for a less sum than claimed, he appeals. Affirmed.

Bond, Marshall & Bond and Jno. A. Talty, for appellant. T. C. Bruere, for respondent.

LAMM, J.

Plaintiff contracted in writing to build a courthouse for the county of St. Charles for the sum of $37,349 to be paid in installments. The last installment was to be $5,349. Alleging full performance and claiming the last installment with certain items of extra work, plaintiff sued in one count on the contract and in another on a quantum meruit for $5,541.84. The latter count and the extras were finally abandoned, and the suit stood as one for said last contract installment, viz., $5,349. Verdict and judgment for $2,019. Plaintiff appeals.

The answer admits the contract, but denies performance, etc., and pleads a provision requiring the work completed by December 31, 1901, and that for a default in that regard plaintiff should pay defendant "as liquidated damages" $10 for each and every day from that date until the building was completed; that plaintiff was given an extension of time, viz., of 26 days from December 31, 1901, to January 26, 1902, but breached the contract in that it did not complete the work until December 26, 1902, and that the liquidated damages for such failure were $3,330; that the balance due plaintiff was $2,019; and that on February 9, 1903, defendant tendered plaintiff said sum, and has ever since been ready to pay the same and now brings it into court. By reply plaintiff puts a construction on the contract, viz., that the "liquidated damages" were merely a penalty, that the real damages from default in time are susceptible of easy calculation and ascertainment with certainty, etc. It then, in a dozen specifications, makes allegations explaining how time was lost. One was to the effect that 55 days were lost because defendant neglected to give plaintiff possession of the premises and the lines and level of the building on the 1st day of March, 1901, as provided in the sixth clause of the contract (presently to be set forth). The seventh clause of the contract, as will be seen in a little while provided for an extension of time in certain contingencies by written claim therefor at the time with an award by the superintendent certifying the amount of the additional time, or, on failure to agree, an arbitration as provided in the third clause of the contract. The reply did not plead a claim made for additional time, either oral or in writing, or a waiver of a written claim or of the arbitration clause, or any attempt to arbitrate, or to obtain an allowance from the superintendent, or any fraud, mistake, caprice, or wrongful or arbitrary conduct on the part of the superintendent in that regard. In fact, it says nothing about a claim, award, or arbitration. It merely sets forth that, because of certain errors, extra work, changes, and alterations and because of a failure to approve plaintiff's bond, 289 days were lost for which plaintiff should be allowed.

The contract bore date February 11, 1901. The clauses material here are the third, sixth, and seventh. The third provides for changes, omissions, etc., and it was thereby agreed that the superintendent should make a fair and reasonable valuation of the work added or omitted, and the contract price should be increased or diminished thereby as the case may be. In case such valuation was not agreed to, the contractor should go on under the written order of the superintendent and do the work, and the valuation to be added or subtracted should be referred to three disinterested arbitrators, one to be appointed by each party, and the two to choose a referee; a decision of any two to be final and binding, the expenses to be share and share alike.

The sixth and seventh follow:

"Sixth. The contractor shall and will proceed with the said work, and every part and detail thereof, in a prompt and diligent manner, and shall and will wholly finish the said work according to the said drawings and specifications, and this contract, on or before the thirty-first (31) day of December, in the year one thousand nine hundred and one (1901), provided that possession of the premises be given the contractor, and lines and levels of the building furnished him on or before the first (1) day of March, in the year one thousand nine hundred and one (1901), and in default thereof the contractor shall pay to the owner ten ($10) dollars for every day thereafter that the said work shall remain unfinished as and for liquidated damages.

"Seventh. Should the contractor be obstructed or delayed in the prosecution or completion of the work by the neglect, delay, or default or any other contractor; or by any alteration which may be required in the said work; or by any damages which may happen thereto by fire; or by the usual action of the elements, or otherwise; or by the abandonment of the work by the employés through no fault of the contractor — then there shall be an allowance of additional time beyond the date set for the completion of said work; but no such allowance shall be made unless a claim is presented in writing at the time of such obstruction or delay. The superintendent shall award and certify the amount of additional time to be allowed, in which case the contractor shall be released from the payment of the stipulated damages for the additional time so certified and no more. The contractor may appeal from such award to arbitrators, constituted as provided in article 3 of this contract."

Mr. Legg was architect and superintendent of the building. On behalf of plaintiff there was some evidence tending to show that the lines and level to be given by defendant (see the sixth clause of the contract supra) were not given until some time in April, 1901, instead of before March 1st, as stipulated. Contra, defendant's testimony tended to show they were given strictly in accordance with the sixth clause — i. e., before March 1, 1901. That issue was well put to the jury and found against plaintiff.

During a long running colloquy between court and counsel upon the legal effect of said clause 7 it was suggested by the court that plaintiff would be allowed to prove any delay caused by any action of superintendent Legg outside of...