Ward v. Haren

• Citation: 139 Mo. App. 8,119 S.W. 446
• Parties: WARD v. HAREN.
• Decision Date: 25 May 1909
• Court: Court of Appeal of Missouri (US)

119 S.W. 446

139 Mo. App. 8

WARD v. HAREN.

St. Louis Court of Appeals. Missouri.

May 25, 1909.

1. DAMAGES (§ 85)—BUILDING CONTRACT— DELAY—LIQUIDATED DAMAGES—EXTRA WORK—WAIVER.

A building contract required that the building be completed by a specified date, or that the contractor pay $120 a day as liquidated damages, and that, if the work should be delayed from any of certain specified causes, the contractor might have an extension of time if a claim therefor was presented to the architect within 24 hours after the delay. Held that, where the contractor made no application for an extension of time for delay caused by a change in the roof required by the owner, such change did not waive the provision requiring completion on the date specified, nor relieve the contractor from liability therefor.

2. CONTRACTS (§ 212)—BUILDING CONTRACTS —COMPLETION—TIME.

Where the time limit in a building contract is waived by the act of the owner, the contractor is bound to complete the building, including any extra work required, within a reasonable time, unless otherwise stipulated.

3. CONTRACTS (§ 303) — PERFORMANCE — EXCUSES.

Where a party by his contract charges himself with an obligation possible to be performed, unforeseen difficulties, however great, will not excuse him, and he must perform unless performance is rendered impossible by act of God, the law, or the other party.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Edward Ward against William

A. Haren. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Kehr & Tittmann, for appellant. Holmes, Blair & Koerner, for respondent.

NORTONI, J.

This is a suit for the balance due on a building contract. The contract contained a stipulation that, if the building was not completed by the plaintiff on the 15th day of April, he would pay liquidated damages at the rate of $120 per day for the delay thereafter. The balance due plaintiff for the work seems to be conceded. The only controversy in the case is in respect of defendant's right to liquidated damages. The defendant's answer avers that plaintiff defaulted 12 days in completing the building, and prays for liquidated damages under the contract at the rate of $120 per day; the total claim for liquidated damages being $1,440. In reply plaintiff concedes the stipulation in the contract touching liquidated damages, but avers the provision referred to was waived or the time extended because of an alteration or extra work ordered by the defendant in the roof of the building. The circuit court accepted the theory of the plaintiff, and denied the defendant's right of recovery on his counterclaim. Judgment having been given for the plaintiff, the defendant appeals.

It appears from the written contract in evidence that on February 23, 1904, plaintiff agreed and undertook to erect for the defendant a temporary building of considerable proportions immediately adjacent an important entrance to the grounds of the Louisiana Purchase Exposition according to plans and specifications therein mentioned. The consideration to be paid therefor was $8,120. It is conceded in the case that the building was to be erected solely for World's Fair purposes; that is to say, to be rented by the defendant to tenants during the period of the World's Fair. It was desirably located with respect to the fair, and its rental value was a high prospect. The Louisiana Purchase Exposition or World's Fair was scheduled to open May 1, 1904. In view of this fact, the parties stipulated that, unless the building was completed by April 15th, the plaintiff contractor would pay the defendant as liquidated damages the sum of $120 per day for each and every day he was in default in completing the building after that date. Touching this matter, it was further stipulated that, if the building was completed prior to April 15th, plaintiff contractor should have one-half of the rents accruing theretofore, not exceeding in all $400. There is no question in the case as to whether the amount of $120 per day is disproportionate when considered with reference to the actual damage the defendant might suffer in event the building was not completed on the date mentioned; that is, as to whether the amount stipulated is liquidated damages or penalty. The amount appears to have been admitted upon the trial to be liquidated damages stipulated in view of the extraordinary circumstance of the World's Fair period. This matter will therefore not be considered. As before stated, to relieve himself from his obligation to pay liquidated damages, the plaintiff relied upon the fact that defendant ordered certain extra work in changing the roof of the building which he had contracted to erect. The contract was entered into February 23d; the building to be completed April 15th. During the period when the building was under construction, and on March 18th, defendant ordered a change in the roof of the building in this: The contract required the roof to be constructed of corrugated iron, and the defendant desired instead a tile roof. Plaintiff contractor agreed to substitute tile and do the extra work for the additional sum of $200. This was agreed to by the parties and the building constructed accordingly. It appears the change in roofing referred to delayed the contractor in his work several days. The parties, however, made no new stipulation with respect to the time limit in which the building should be completed. An extension of time on account of the change in roofing was neither stipulated nor discussed between the parties. The argument on behalf of plaintiff is not that the defendant agreed to extend the time, but that the alteration or extra work ordered operated as an act of the defendant owner to impede or delay the work, which, therefore, released him from his obligation to complete the building by April 15th; or, in other words, the act of the owner in ordering the extra work ipso facto operated a waiver of the time limit stipulated in the contract. From the contract before us there appears to be no provision whatever by which the duty of making alterations or changes in the building is imposed upon the contractor; that is to say, the plaintiff contractor did not, by his contract, so completely place himself within the power of the defendant owner as to be obligated to make alterations in or do extra work on the building by the mere order of the defendant owner or his agent, the architect. Plaintiff contractor was free to make alterations or do extra work at the suggestion of the builder for additional compensation or to decline to do so, as he saw fit. There are cases where the owner has reserved to himself by contract the power of ordering alterations or extra work on the building, and the contractor is obligated to the performance of such orders, without the right to demand an extension of time for the completion of the work. In such circumstances the doctrine obtains to the effect that where the owner orders additional work which the contractor may not refuse to do, and thus delays the completion of the building, the act of the owner in thus ordering the extra work operates to waive or extend the time within which the building should be completed. This for the reason the contractor, being completely subservient to the owner under the contract, is compelled to do his bidding, and therefore the law in refusing to tolerate the exaction of that which is impossible implies relief from the obligation as to time. The law declines to tolerate an arbitrary exercise of the power thus vested in the owner which would result in mulcting the contractor in damages for failing to complete the building within the time originally provided when the owner knew at the time of ordering the alteration that it was impossible to complete the work without an extension. For noted authorities and leading lights upon this doctrine, see the English cases of Westwood v. Secretary of State for India, 11 Weekly Reporter & Dig. 261; Dodd v. Churton, 1 Q. B. Rep. 562; 45 Weekly Rep. & Dig. 490. See, also, the following American authorities in point: Small v. Burke, 92 App. Div. 338, 86 N. Y. Supp. 1066; Ramsburg v. McCahan, 3 Gill (Md.) 341; Lauer v. Brown, 30 Barb. (N. Y.) 416; Smith v. Gugerty, 4 Barb. (N. Y.) 614; Wright v. Meyer (Tex. Civ. App.) 25 S. W. 1125. For an instructive article see 41 Solicitors' Journal, p. 589. In affirmance of the general doctrine that the contractor is released from his obligation to complete the building within the time specified by an act of the owner which impedes or delays his performance, see the following authorities in point: Holme v. Guppy, 3 M. & W. 389; Thornhill v. Neats, 8 C. B. Rep. 830; Russell v. Viscount La Da Bandeira, 13 C. B. Rep. 148; Close v. Clark, 16 Daly (N. Y.) 91, 9 N. Y. Supp. 538; Dannat v. Fuller, 120 N. Y. 554, 24 N. E. 815; Eldridge v. Fuhr, 59 Mo. App. 44; Van Buren v. Digges, 11 How. 461, 13 L. Ed. 771; 30 Amer. & Eng. Ency. Law (2d Ed.) 1255, 1256.

The time limit in the contract having been thus removed or waived by the act of the owner, there is substituted therefor an obligation on the part of the contractor to complete the building, extra work included, within a reasonable time, unless otherwise stipulated in the contract. Cornish v. Suydam, 99 Ala. 620, 13 South. 118; Harrison v. Trickett, 57 Ill. App. 515; Bridges v. Hyatt, 2 Abb. Prac. (N. Y.) 449; Green v. Haines, 1 Hilt. (N. Y.) 254; Lloyd on Building (2d Ed.) § 39; 30 Amer. & Eng. Ency. Law (2d Ed.) 1257, 1258. In the cases asserting the doctrine above referred to, the parties wholly failed to provide in the contracts involved for an extension of time and how such extension...