Davis v. Ford

Fowler, J., delivered the opinion of the Court. The defendant, who is an architect and builder, agreed with the plaintiffs, who are agents of the County Court of Raleigh County, West Virginia, to supply the materials and labor and build a court-house for the sum of $25,751. This agreement was in writing and under seal, and according to its terms the building was to be completed within sixteen months from its date, that is to say, on or before the 2nd day of January, 1892. The naiT. alleged that the defendant failed to erect and complete said building according to the terms of the agreement, and abandoned the work; that consequently the plaintiffs were compelled to finish it, and they claim $7,000.

On the 4th May, 1892, an order was passed by said County Court reciting that it having been made to appear to the Court that the defendant was not prosecuting the work as he agreed, it was ordered that notice be given to him to proceed with diligence to complete the building, and that if he failed to proceed with the same in ten days after such notice, then the Court, at its election, would proceed to have the same completed at his expense. A copy of this order was sent to the defendant, and he received it on the 10th of May. On the 7th May the defendant’s superintendent in charge of the work closed up his accounts and left Raleigh for Baltimore, leaving the building in an unfinished condition — only two-thirds or three-fourths completed. On the 22nd May the superintendent returned to Raleigh, and was employed by the plaintiffs to finish the building.

The defendant testifies that he directed him to return and resume charge of the work as his agent. The defendant failed, however, according to all the testimony, his own included, to furnish either labor or materials after the 7th of May. The plaintiffs having finished the building after notice to' the defendant to resume work, are entitled to recover, ³³⁸ unless the circumstances relied on by the defendant constitute a defence or valid excuse for his abandonment of the work. His defence is that not having been paid for certain extra work he had a right to stop work on the building until paid; and, secondly, that in June, 1892, after the alleged abandonment, the plaintiffs agreed that he should furnish the necessary materials to complete the work.

The contract itself provides that if in excavating for the foundations it should become necessary to excavate deeper than shown by the drawings to get a solid foundation for the walls or any part thereof, that measurements should be made at the time to ascertain the exact amount of additional excavation, masonry, labor and materials, which were to be valued and paid for as an extra' at such prices as should be agreed upon before the woi-k should be 'done, otherwise no payment was to be made for such extra work. On the 24th February, 1891, the plaintiffs informed the defendant’s foreman that they had decided that the foundations should be made twelve inches deeper than provided in the specifications. It appears that the extra work was done, but without any agreement as to price, as provided in the contract. And in April, 1892, more than a year after this extra work was finished, the defendant for the first time demanded a settlement for it.

In the meantime he had been paid more than the whole amount he was entitled to up to the time of completion of the building, which the testimony shows was only about two-thirds done when abandoned by the defendant. Although the plaintiffs deny that they refused to pay for extra work, it is not surprising that under the circumstances they may have been unwilling to pay anything more to the defendant on account of his work. The defendant says, that upon the refusal of the plaintiffs to pay his claim for extra work, he protested against such injustice and declared to them that if they refused to allow for extra work after ordering it, their contract was worthless. And he seems to have acted upon this view, for very soon thereafter the work appears practically aban ³³⁹ doned by him.

Early in June the defendant went to Raleigh, and there entered into a written agreement to refer to arbitration his