Ætna Iron & Steel Works v. Kossuth Cnty.
| Decision Date | 22 January 1890 |
| Citation | 79 Iowa 40,44 N.W. 215 |
| Court | Iowa Supreme Court |
| Parties | ÆTNA IRON & STEEL WORKS v. KOSSUTH COUNTY. |
OPINION TEXT STARTS HERE
Appeal from district court, Emmet county; GEORGE H. CARR, Judge.
Action in two counts. In the first, plaintiff asks to recover the contract price on a written contract for the construction of cells and other iron-work alleged to have been put into the jail of the defendant county, and accepted by the defendant. In the second count, plaintiff asks to recover the reasonable value of the same, as having been furnished at the request of the defendant. Answer denying generally and denying specially that the work was completed according to contract; that the same was ever accepted by the defendant; and that the same was of any value,--and asking damages. Trial to a jury. Verdict and judgment for defendant. Plaintiff appeals. The contract set out is “to furnish all material and labor, and complete and set up in the court-house at Algona, Iowa, two steel cells and other works, more particularly mentioned in the specifications and shown on the plans which form a part of this contract, all of which said party of the first part is to do, in a good and workman-like manner, within ninety days from the date hereof.” The specifications are quite lengthy and minute as to details, calling for plate-work, steel mesh-work, steel grated or open work, cell fronts, cell doors, lever bars, lock boxes, bunks, ventilation pipes, entrance door, steel window-gratings, and heating apparatus. Among other specifications, it is required that all exterior plateiron of cells and corridor be protected by steel mesh-work and steel bars, to be riveted in place in a certain way; that all grated work composing the walls of cells and corridor be made of grating composed of 1-inch round steel upright bars, placed 3 inches apart, and passing through steel cross-bars 2 1/2 by 1 inch, spaced 14 inches apart, to be fastened as specified. The front of cells and doors to be made of steel grated work. Cell doors to be hung on patent antifriction rollers, hung to strong grooved carriers, firmly riveted to ceiling with counter-sunk rivets; strong guides to be riveted to floor of corridor. It is specified that “whenever the word ‘steel bar’ is used it is to signify Bristol steel,--a bar of iron covered with hard steel, and tempered so as to be practically saw and file proof.” It will be seen that the work consisted of several separate parts. It is not contended that it was defective in all the parts. Appellee's particular complaints are that all the bars used were composed of iron, and not of steel, and were not bars of iron with steel case-hardened, so as to render them practically saw and file proof, but are soft, and can be readily cut with a file, saw, or any sharp and hard instrument; that the meshwork is not so as to prevent cutting the iron plate more than six inches in any direction, but in many places will permit cutting the plate as much as two feet, making holes or openings large enough for a man to escape; that the riveted-work is not properly done; that the iron lining of the juvenile cell is not spiked with wroughtiron spikes, nor securely fastened to the walls, as required.Clark & Call, for appellant.
R. J. Danson and J. C. Cook, for appellee.
1. There is no controversy but that if the plaintiff substantially performed the contract the measure of his recovery is the contract price, with interest. Appellant contends that if the work, though defective in some particulars, so that it was not completed in the manner specified in the contract, yet, if it was of real, substantial value to the defendant, for the purposes for which it was intended, then the plaintiff is entitled to recover the contract price, less any damage the defendant has sustained by reason of the non-performance of the contract. Appellee contends that, in case the contract was not substantially performed by the plaintiff on its part, it is not entitled to recover anything, as the work was never accepted by the defendant, and is not of the kind and quality contracted for. The court instructed the jury that, to recover under the first count, the plaintiff must show that it had substantially performed the contract on its part, and that if it had, the measure of recovery would be the contract price, with interest. As to the second count, the jury were instructed that if the workmanship and materials were not in all particulars substantially as required by the contract, but were of real, substantial value to the county, for the purposes for which they were intended, the plaintiff would be entitled to recover as much as the work was reasonably worth, not exceeding the contract price, and that in such case it is not necessary, to entitle the plaintiff to recover, that the defendant should have accepted the job, or have taken it off the plaintiff's hands; that, if the structure was of such character or quality of materials, or general style of workmanship, as to be of no real, substantial value to the defendant, for the purpose for which it was intended, then the defendant is not bound to compensate the plaintiff therefor. On motion of the defendant the court gave the following, among other, instructions: ...
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