Fielding & Shepley Inc. v. Dow

McCOMB, J.

Defendant appeals from a judgment in favor of plaintiff in the sum of $9,618 after trial before the court without a jury in an action to recover an alleged balance due on a subcontract. •

The stipulated facts are these:

“First: That the plaintiff, Fielding & Shepley, Inc., a corporation, poured 124,830 square yards of concrete at the project mentioned in the complaint at the contract price of 69^ per square yard, or a total amount of $86,132.70; that $76,030.70 was paid by Dow or a credit given. That Dow claims two items of credit, namely, an item of $351.55 for repair of mixer, and $475.00 to clean the concrete from the site which plaintiff denies.

. “Second: That the concrete was defective.

“Third: That the United States Government imposed a pen

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alty of $23,700.00 on the defendant under his contract with the Government because of the defective concrete. That the penalty so imposed was in a reasonable amount, and is properly set forth in the percentages as set forth in the Bill of Particulars filed by the cross-complainant.

“Fourth: That Dow furnished all aggregates, weighed and batched the same and delivered the batched materials to the mixer hoppers of Fielding & Shepley, Inc. That Dow thereafter had nothing further to do with the concrete except to protect it against freezing.”

Defendant relies for reversal of the judgment on four propositions which will be stated and answered hereunder seriatim:

First:

Plaintiff did not perform its subcontract according to its terms.

This proposition is untenable. Defendant claims that (1) the specifications required plaintiff to construct the concrete so that it would have a specific minimum compressive strength. Admitting that the compressive tests prepared by the government vary from the compressive strength required by the specifications, nevertheless there was substantial evidence that the difference in compressive strength resulted from impurities in the mix at defendant’s batching plant and failure to protect the cement against freezing but permitted the application of salt to the cement which accelerated freezing, from which the trial court impliedly found that the lack of compressive strength was not due to plaintiff’s fault.