Vogelsang v. Board of Education

• Decision Date: 07 June 1921
• Docket Number: No. 16350.,16350.
• Citation: 231 S.W. 645
• Parties: VOGELSANG et al. v. BOARD OF EDUCATION OF CITY OF CAPE GIRARDEAU.
• Court: Missouri Court of Appeals

231 S.W. 645

VOGELSANG et al. v. BOARD OF EDUCATION OF CITY OF CAPE GIRARDEAU.

No. 16350.

St. Louis Court of Appeals. Missouri.

June 7, 1921.

Appeal from Cape Girardeau Court of Common pleas; John A. Snider, Judge.

"Not to be officially published."

Action by August Vogelsang and Henry Vogelsang, composing the firm of Vogelsang Bros. Construction Company, against the Board of Education of the City of Cape Girardeau. Judgment for plaintiffs, and defendant appeals. Reversed in part, and remanded, with directions.

L. L. Bowman and Spradling & Burroughs, all of Cape Girardeau, for appellant.

Edw. D. and David B. Hays, of Cape Girardeau, for respondents.

BECKER, J.

This action was instituted in two counts. In the first count plaintiffs seek to recover the sum of $300 as a balance due on a contract made to build an addition to the Lincoln School in Cape Girardeau, Mo., while by the second count plaintiffs seek to recover $120.74 for damages sustained by them as the result of defendants' failure to maintain insurance according to the terms of the building contract, on the work which the plaintiffs were doing on another and different building from the one named in the first count. The case was tried to the court and a jury, and resulted in a verdict for plaintiffs on each count. From the resulting judgment, defendants appeal.

As to the first count, it appears that in the contract entered into between plaintiffs and defendants, whereby plaintiffs agreed to build an addition to the Lincoln School for a sum approximating $10,000, it was provided, among other things, that plaintiffs should furnish —

"and set up in the basement one S-36-7 Ideal cast iron sectional boiler, or equal, having the capacity of 3,150 square feet, provided with fire draft and clean-out door complete, and a full set of complete shaking and dumping grates."

The boiler which plaintiffs installed in the building was a Capital boiler which had been used about four years. The building, according to the contract, was to be built according to certain drawings and sepecifications furnished by the architect and made a part of the contract, and all of the work under the contract was required to be done —

"under the direction of said architect and his decision as to the true construction and meaning of the drawing and specifications final."

When plaintiffs had finished the building, the architect, after making an inspection, issued to the plaintiffs his final inspection certificate for the final payment; but when the time for payment arrived some member of the board of education raised the question as to whether or not the Capital boiler installed in the school by plaintiffs under the contract was a compliance with the terms of the said contract, which called for an "S-36-7 Ideal cast iron sectional boiler, or equal," notwithstanding the approval by the architect and the agreement in the contract that the architect's decision should be final.

To settle the controversy it was agreed between plaintiffs and defendants, and for the purpose of determining whether or not plaintiffs had complied with their contract, that a competent licensed inspector should examine the boiler placed in the school —

"within 30 days and report the condition and value of the boiler to the board of education, and if his report shows the condition of the boiler to be good and its value equal to a new Ideal boiler, such as specified by the architect to be placed in the above-named building, the obligation of the Vogelsang Bros. Construction Company will have ceased; or if the board of education fails to have this examination and report made within 30 days, the obligation of said contractors shall cease. Should this report show the boiler to be inferior or of less value than the boiler specified by the architect, then the said Vogelsang Bros. Construction Company agrees to purchase and install one Ideal boiler manufactured by the American Radiator Company, of the size and kind specified by the architect. To protect the school board in this obligation and agreement, the said Vogelsang Bros. Construction Company agrees to allow the board of education to hold back a sum...