Roughton v. Brookings Lumber & Box Co.

[754]

SHAW, J.

On July 7, 1910, plaintiff’s assignor, Manufacturers’ Automatic Sprinkler Company, made a written proposal to defendant whereby it proposed, for a sum therein specified, to furnish materials and labor therefor and install in the box factory of defendant its system of automatic sprinklers and fire extinguishers, which proposal was, in writing, duly accepted by defendant. The proposal as accepted contained no provision fixing the time within which the installation of the plant should be made, but did provide that no change or modification of the contract should be binding upon the Automatic Sprinkler Company other than such as in writing should be indorsed thereon by the president of the company. It also contained a provision as follows: “If at any time prior to the completion of the equipment, the work thereon be discontinued by fire or any cause other than the fault of the Manufacturers’ Automatic Sprinkler Company, there shall be immediately due and payable from you (the defendant) a sum equal to the value of all goods destroyed; materials furnished, labor and services rendered at the time of discontinuance.” Thereafter plaintiff’s assignor proceeded with the work of installing the plant as called for by the terms of the contract, when, on September 22, 1910, at which time the installation of the plant was partially complete, a fire occurred as a result of which the buildings and fire extinguishing system so far as installed therein were destroyed. Thereupon, pursuant to the provisions of the contract herein-before quoted, work was discontinued.

This action is to recover the value of the goods destroyed, materials furnished, labor and services rendered up to the time when the work of installation of said plant was discontinued on account of said fire.

The court gave judgment for plaintiff, from which, and an order denying defendant’s motion for a new trial, it appeals.

The court found that it was untrue that the contract made between plaintiff’s assignor and defendant was in part oral; that it was not agreed that the sprinkling apparatus should be installed in defendant’s buildings within three weeks from July 7, 1910; that it was untrue that the proximate cause of the destruction of the buildings and plant partially installed therein was the delay of plaintiff’s assignor in the performance of the work; all of which facts were affirmatively alleged in the answer as a defense to the action. The court further