Warren-Scharf Asphalt Paving Co. v. Laclede Const. Co.

• Decision Date: 04 November 1901
• Docket Number: 1,542.
• Citation: 111 F. 695
• Parties: WARREN-SCHARF ASPHALT PAVING CO. v. LACLEDE CONST. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

111 F. 695

WARREN-SCHARF ASPHALT PAVING CO. v. LACLEDE CONST. CO.

No. 1,542.

United States Court of Appeals, Eighth Circuit.

November 4, 1901

William Pierrepont Williams (James L. Blair and James A. Seddon, on the brief), for plaintiff in error.

James F. Meagher (Silas H. Strawn and Frederick S. Winston, on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District judge.

THAYER Circuit Judge.

The Warren-Scharf Asphalt Paving Company the plaintiff in error sued the Laclede Construction Company, the defendant in error, upon a contract dated March 14, 1899, whereby the former company agreed with the latter company to furnish the materials and perform the necessary work and labor in the construction of a railroad from Peoria, Ill., to East Clinton, in the state of Illinois. In one count of the petition it was alleged that the defendant company was indebted to the plaintiff company in the sum of $11,159.12 for work actually done and performed in the execution of said contract, for which sum the plaintiff prayed judgment. In another count of the petition it was alleged, in substance that after work to the value of $11,159.12 had been performed, and on or about May 27, 1899, the defendant company, without any default on the plaintiff's part abrogated the contract and refused to allow the plaintiff to proceed further in the performance of the same; that, if the plaintiff had been allowed to perform its said agreement, it would have realized a profit in the sum of $130,000, for which latter amount it prayed judgment in addition to a judgment for the value of the work actually performed at the time the contract was abrogated. The defendant company pleaded, in substance, that the contract in question contained the following provision, known as 'Paragraph 12':

'The party of the second part (namely, the Laclede Construction Company) shall have the right at any time, and for any reason which may appear satisfactory to said party, to suspend the prosecution of the work embraced in this contract, either temporarily or permanently, upon giving ten days' notice to the party of the first part (namely, the Warren-Scharf Asphalt Paving Company) of his intention so to do, in which event said party of the first part shall be entitled to payment in full for the work done by it up to the time of such suspension, subject to such deductions as are herein elsewhere provided for; but such suspension shall not give to the party of the first part any claim for damages therefor against said party of the second part.'

The defendant company further pleaded that on May 27, 1899, by virtue of the aforesaid provision of this contract, it notified the plaintiff to permanently suspend the prosecution of the work embraced in the contract upon the expiration of 10 days from said date, and that the plaintiff then and there agreed that it would suspend the prosecution of the work, and agreed to waive the 10 days' notice required by the...