Guerini Stone Co. v. P. J. Carlin Constr. Co., 248 U.S. 334 (1919)
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Guerini Stone Company v. P. J. Carlin Construction Company
No. 218
Argued November 7, 8, 1918
Decided January 7, 1919
248 U.S. 334
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE FIRST CIRCUIT
Syllabus
C contracted to erect a federal building, and G subcontracted with C to build the superstructure in a specified time, to be extended to make up for delays caused by the owner, by C or by other causes specified, and C agreed to provide all labor and materials not included in G’s contract in such manner as not to delay the material progress of G’s work, and to reimburse G for any loss caused by failure to do so. G’s work was stopped by the action of the government in suspending the operations because of a defect in the foundation provided by C, and, after more than two months, there was still no prospect that G, though ready, could resume within a reasonable time. Held that an agreement that C would furnish a suitable foundation so as not to delay G was imported, which was not dependent on C’s fault or the rights of the government under the main contract, and that G was not confined to the remedy of time extension and reimbursement, but could treat the contract as broken and sue for the breach. P. 340.
When the complaint counts upon a special building contract, and defendant’s breach in failing to provide a proper place for plaintiff’s work under it, and also upon a quantum meruit for labor performed and materials furnished, evidence of materials, etc., left on the premises by the plaintiff at the termination of the contract and appropriated by the defendant is admissible under the latter count without regard to its bearing on the damages recoverable under the special contract. P. 342.
Error in admitting evidence cannot be imputed to the trial court upon the theory that a count of the complaint was waived at the trial when the theory depends on a statement made by plaintiff’s counsel in the circuit court of appeals which was inconsistent with the bill of exceptions. Id.
Upon the breach by the defendant of a building contract, certain tools and appliances, brought to the building and used by the plaintiff in performing the contract and susceptible of further use in completing the work, were left in place by the plaintiff and accepted and appropriated by the defendant; held that their value should be considered as part of plaintiff’s expenditure under the contract, in computing damages, within the rule laid down in United States v. Behan, 110 U.S. 338, 344-346. Id.
Where a building contract contemplates that the contractor’s ability to perform will depend upon his receiving stipulated payments on account as the work progresses, a substantial failure to pay as stipulated will justify him in declining to proceed with the work. P. 344.
A contractor agreed to do certain concrete work, furnishing the materials, for a stated sum, payable partly in installments, and, by a separate paragraph of the contract, offered an option,which was afterwards accepted, to set at so much per square foot certain granite blocks, to be furnished by the other party. There was a general provision for monthly payments on account, not to exceed a certain percent of the cost of work erected in the building, to be made upon written requisition, and the parties subsequently agreed upon a mode of estimating concrete work for this purpose. Held: (1) that the acceptance of the option did not make a separate contract for the granite work, and that the provision for monthly payments applied to that as well as to the concrete work, so that a requisition properly included both classes; (2) that, in any event, a requisition uniting demands for both classes was unobjectionable if the granite work had been completed and the full compensation therefor had become payable. P. 345. . .
In an action for breach of a building contract, the complaint alleged defendant’s failure to make payment upon demands made "in accordance with the contract," while the demand proved were based on a modification of the contract. Held an unimportant variance not requiring an amendment, particularly in view of the relation of the matter to a former decision and mandate of this Court. P. 346.
An exception to an instruction should be specific, directing the mind of the court to some single point of alleged error. P. 348.
When the grounds relied on by the circuit court of appeals for reversal prove untenable, this Court will consider what judgment should have been rendered in view of other assignments of error. P. 349.
241 F. 545 reversed.
The case is stated in the opinion.