Wheeling Mold & Foundry Co. v. Wheeling Steel & Iron Co.

• Citation: 51 S.E. 129,58 W.Va. 62
• Parties: WHEELING MOLD & FOUNDRY CO. v. WHEELING STEEL & IRON CO.
• Decision Date: 27 May 1905
• Court: West Virginia Supreme Court

51 S.E. 129

58 W.Va. 62

WHEELING MOLD & FOUNDRY CO. v. WHEELING STEEL & IRON CO.

Supreme Court of Appeals of West Virginia.

May 27, 1905

Submitted March 9, 1905.

Syllabus by the Court.

Under the contract sued on, the plaintiff was to manufacture and deliver to the defendant certain machinery at a time and place specified, at a price specified, and, in case of failure to complete and deliver the machinery at such time and place, $50 was to be deducted from the contract price for each day required to complete and deliver the machinery beyond the time specified. Held, that the $50 per day to be deducted for delay in the completion and delivery of the machinery is in the nature of liquidated damages, and not a penalty.

The plaintiff cannot excuse delay in the completion and delivery of said machinery beyond the time specified in such contract and avoid the deduction of $50 per day from the contract price for such delay, by showing merely that it proceeded in good faith and with due diligence, with the use of all means in its power and at its command, to perform the contract.

Under such contract the plaintiff was required to furnish sufficient means and ability to perform the contract on its part, according to its terms.

A verdict of a jury will be set aside for the admission of improper evidence over objection where it is apparent that such evidence was misleading, and prejudicial to the party complaining.

Error from Circuit Court, Ohio County.

Action by the Wheeling Mold & Foundry Company against the Wheeling Steel & Iron Company. Judgment for plaintiff, and defendant brings error. Reversed.

Hubbard & Hubbard, for plaintiff in error.

Henry M. RUSSELL, for defendant in error.

COX, J.

By a contract in writing bearing date the 16th day of September 1901, entered into by and between the Wheeling Steel & Iron Company, designated therein as the "owner," and the Wheeling Mold & Foundry Company, designated therein as the "contractor," the latter company was to manufacture and deliver to the former company certain pipemill machinery. The contract recited that the contractor had full knowledge of the owner's requirements in regard to the machinery and full knowledge that the building of the machinery was to be begun forthwith, and that it was necessary that it should be delivered at Benwood, W. Va., on or before noon of January 14, 1902. Among other things, the contract provided, in effect, that the contractor should not further engage its capacity so as to militate against the manufacture and delivery of the machinery at Benwood, W. Va., by noon of January 14, 1902; that neither party should be liable to the other in damages for delays due to wars, strikes, fires, or accidents beyond their control; that, in case of delay from any of said causes, a certificate for time lost should be required; that all drawings furnished the contractor should remain the property of the owner, and be returned to it on completion of the work; that the owner should furnish certain materials, including motors, to be used in and in connection with the manufacture of the machinery to be manufactured and delivered by the contractor; that all foundations should be prepared by the owner; that, in consideration of the faithful carrying out of said contract, together with all its various stipulations, and the delivery of the machinery at Benwood W. Va., by noon of January 14, 1902, the owner should pay the contractor $58,526; that, if the machinery should be delivered before the date specified, $50 per day should be added to the contract price for each day of 24 hours that the machinery should be delivered before the date specified; that, in case of delay, $50 for each day of 24 hours required to complete and deliver the machinery beyond the time specified should be deducted from the contract price; that payment of 80 per cent. should be made on monthly estimates until such payments aggregated the sum of $46,820; that the remaining 20 per cent. should be payable 30 days after the complete erection and acceptance of the machinery. On the 15th day of April, 1903, this action of assumpsit was brought by the Wheeling Mold & Foundry Company against the Wheeling Steel & Iron Company. $46,825.03, having been paid or credited, the plaintiff claimed the residue of the contract price, and in addition the amount of certain "extras," not disputed by defendant. A trial by jury was had, resulting in a verdict for plaintiff for $12,298.93; being the residue of the contract price, without interest, and the amount of the extras not disputed. Defendant moved to set aside the verdict, which motion was overruled, and judgment was entered on the verdict, and defendant excepted, and was afterwards allowed a writ of error to the judgment.

The assignments of error by defendant are numerous. They may, however, be grouped under four heads: First, the rejection of defendant's notice of recoupment; Second, the admission and rejection of evidence; third, the giving and refusing of instructions to the jury; fourth, the sufficiency of the evidence to support the verdict.

1. The rejection of defendant's notice of recoupment.

The notice of recoupment proceeded on the theory that defendant might recoup damages for delay in excess of the $50 per day provided by the contract. At the instance of defendant, and without objection, the court instructed the jury, in effect, that the contract did not impose a penalty or forfeiture. The $50 per day for delay, to be deducted from the contract price, was in the nature of liquidated damages, and by the amount thereof, fixed by the contract, the defendant was bound in an action at law to recover from it the contract price. Welch v. McDonald, 85 Va. 500, 8 S.E. 711. See 19 Am. & Eng. Enc. Law, 422, 412, 413; Pettis v. Bloomer, 21 How. Prac. 317; Texas, etc., Ry. Co. v. Rust (C. C.) 19 F. 239; Kunkel v. Wherry, 189 Pa. 198, 42 A. 112, 69 Am.St.Rep. 802; Button Fastening Co. v. Breed, 163 Mass. 10, 39 N.E. 346; McPhee v. Wilson, 25 U. C. Q. B. 169; Smith v. Smith, 4 Wend. 468; Malone v. Philadelphia, 147 Pa. 416, 23 A. 628; Streeper v. William, 48 Pa. 450; Sedgwick on Damages (8th Ed.) § § 403, 419; Crane v. Peer, 43 N.J.Eq. 553, 4 A. 72; 13 Cyc. 98. Defendant was not prejudiced by the rejection of its notice of recoupment.

2. The admission and rejection of evidence.

Defendant complains of certain general evidence admitted over its objection. This evidence was principally adduced from witness Blue, president of plaintiff company, and witness Long plaintiff's engineer. This evidence was to the effect that plaintiff was diligent generally in the performance of its contract. The evidence consisted of many expressions by the witnesses for the plaintiff, such as the following: "We made as many castings as we could, and did as much machine work on them as we could. We did as much, I believe, as anybody could." "We went ahead with the work just as hard as we could." "We performed the contract to the best of our ability in regard to the way material came to us." "Why, it did everything in its power to carry out the contract; that is, in my opinion." "We completed the machine work with all possible speed." "We attempted to push the work as best possible." "No, sir; the company did everything in their power to expedite matters"--and the like. These conclusions or opinions were allowed to go to the jury. We will consider this general evidence in the light of instruction No. 3 given at the instance of the plaintiff, which is as follows: "If the jury find from the evidence that, after the making of the written agreement which has been introduced in evidence, the plans mentioned in the said agreement were changed, with the consent of both the plaintiff and the defendant; and if they further find that these changes made it impracticable for the work provided for in the said agreement to be completed within the time specified in the said agreement; and if they further find from the evidence that the plaintiff, the Wheeling Mold & Foundry Company, proceeded in good faith and with due diligence, and with the use of all means in its power and at its command, to proceed with and complete the work provided for in said agreement, and that any delays which may have taken place in the completion of the said work were not due to any neglect or default upon the part of the plaintiff--then the plaintiff is entitled to recover in this action the amount remaining due and unpaid of the contract price provided for in the said agreement, without any deduction therefrom by reason or on account of such delay in the completion of the said work." The clause of the instruction to which we direct special attention is substantially that if the plaintiff proceeded, in good faith and with due diligence, with the use of all means in its power and at its command, to complete the work provided for by the contract, the plaintiff was not liable for the delays occurring, but was entitled to the contract price, without deduction. The contract in question required plaintiff to deliver the machinery at or before noon on January 14, 1902--about four months from the date of the contract. The machinery was not delivered until about the 23d day of September, 1902--more than a year from the date of the contract. The agreement to deliver was on the part of the plaintiff. It was incumbent on it to show that it was excusable for the delay, and the court below, in effect, properly so instructed the jury by instructions Nos. 2 and 3 given at the instance of the defendant. The evidence tending to show good faith and diligence on the part of the plaintiff, or the conclusions or opinions of the witnesses that plaintiff acted diligently or in good faith, with the means at its...