Kellogg Bridge Company v. Hamilton

The Kellogg Bridge Company, which brings this writ of error and was defendant below, undertook to construct, for the Lake Shore & Michigan Southern Railroad Company, an iron bridge across Maumee river, at Toledo, Ohio. After doing a portion of the work it entered into a written contract with Hamilton, the defendant in error, for the completion of the bridge under its directions. That contract is the basis of this action and contains, among others, these stipulations:

'That the said party of the first part [Hamilton] hereby     agrees to furnish and prepare all the necessary false work      and erect the iron bridge now being constructed by the said      party of the second part [the Kellogg Bridge Company] for the      Lake Shore and Michigan Southern R. R. Co., at Toledo, Ohio,      over the Maumee river, receiving said bridge material as it      arrives on the cars at the site of said bridge and erecting      the same in the best manner, according to the design of said      bridge and the directions of said second party, from time to      time, commencing the erection of said work when required to      do so by said second party, and proceeding with the same with a force sufficient to complete the      entire work on or before the first day of March next; the      said first party also agrees to assume and pay for all work      done and materials furnished up to the time of executing this      contract, including piling and piles, timber, and other      materials and labor done on the same, but not including bolts      and washers which have been furnished by the party of the      second part, but to return said bolts and washers to the said      second party, or pay for the same on completion of said      bridge. And the said first party in consideration of the     payments hereinafter mentioned, to be made by said second      party, agrees to perform all the stipulations of this      agreement in a through and workmanlike manner and to the      satisfaction of the second party. And if at any time the said     second party is not satisfied with the manner of performing      the work herein described, or the rapidity with which it is      being done, the second party shall have full power and      liberty to put on such force as may be necessary to complete      the work within the time named, and provide such tools or      materials for false work as may be necessary, and charge the      cost of the same to the said first party, who agrees to pay      therefor.'

In consideration of the faithful performance of these stipulations, Hamilton was to receive from the Bridge Company $900 on the completion of the first span, a like sum on the completion of the second span, $800 on the completion of the third span, and $1,403 on the completion of the draw and the entire work-such payments to be made only on the acceptance of each part of the work by the chief engineer of the Lake Shore & Michigan Southern Railroad Company.

The bridge which Hamilton undertook to erect consisted of three independent fixed spans, each to be 175 feet 6 inches in length, suspended between and resting at each end of the span upon stone piers, which had been prepared to receive the same, and one draw span of 185 feet in length, resting upon a pier in the center, also then prepared. In erecting the several spans it was necessary to build and use what the contract describes as 'false work,' which consisted of piles driven in the river between the piers upon which the spans were to rest, and upon which was placed a platform.

As indicated in the written contract, the bridge company had previously constructed a part of this false work between the first and second spans, the cost of which Hamilton paid, as by the contract he agreed to do. Assuming this work to be sufficient for the purposes for which it was designed, Hamilton proceeded to complete the erection of the bridge according to the plans furnished him.

There was evidence before the jury tending to establish the following facts: A part of the false work or scaffolding put up by the company sank under the weight of the first span, and was replaced by Hamilton. When the second fixed span was about two-thirds completed, the ice, which before that had formed in the river, broke up in consequence of a flood, carrying away the false work under that span, and causing the whole of the iron material then in place on the span, or on the span ready to be put in place, to fall in the river, which at that place was about 16 feet deep. If the piles driven by the bridge company had been driven more firmly into the bed of the river, they would have withstood the force of the ice and flood. In consequence of the insufficiency of the false work done by that company, Hamilton was delayed in the completion of the bridge and subjected to increased expense.

In this action his claim is that the company is liable, not only for the amount specified in the contract, but also for such damages as he sustained by reason of the insufficiency of the false work it constructed. Charging defendant with these amounts, and crediting it with such sums as had been paid to or for Hamilton, a balance of $3,693.78 was claimed to be due the latter. Defendant, by way of counter-claim, asked judgment against Hamilton for $6,619.70. There was a verdict and judgment in favor of plaintiff for $3,039.89.

Richard Waite and E. T. Waite, for plaintiff in error.

J. C. Lee, for defendant in error.

HARLAN, J.