Stimson Mill Co. v. Los Angles Traction Co.

SMITH, C.

—This suit was brought to foreclose a lien for materials furnished by plaintiff in the construction of defendant’s bridge over the Los Angeles River in the city of Los Angeles. The plaintiff had judgment, from which and from an order denying its motion for a new trial the defendant appeals. The bridge was constructed under an unrecorded contract with Sawyer and Arthur, partners, by the terms of which it was to consist of five steel spans and the balance of

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wood and steel, or of wood. By the terms of the contract it was to be completed November 9, 1898; and it was stipulated that for delay in completion the contractors should pay, while the bridge remained uncompleted, fifty dollars per day for ten days, and thereafter one hundred dollars. But it was provided “Thafi from and after the day that said contractors allow said party of the first part to run cars over said bridge, . . . whether over the completed structure or a temporary structure which said contractors may provide, ... no damages shall be awarded hereunder; but that for the purposes of ascertaining said liquidated damages said structure shall be considered as completed.”

The bridge was completed, with the exception of the five steel spans, some time prior to the 15th of November; when it was ascertained that the steel for the uncompleted part could not be obtained in time to complete the bridge within the time stipulated. Thereupon, at the suggestion of the manager of defendant, the contractors undertook to put up, before the 30th of November or 1st of December, a temporary structure of timber over which the cars could be run on that date; and this was accordingly done. This structure rested upon planks laid on the ground, and was not in any way physically connected with the bridge, except that on it was laid the permanent track consisting of stringers, ties, and rails. The structure was soon afterwards replaced by the steel structure originally contemplated—the work of substitution commencing immediately upon the completion of the temporary structure, and its effect being to leave the track supported by the new steel structure in place of the wooden structure removed. It is admitted that the plaintiff furnished the contractors lumber of the aggregate value of something over five thousand dollars, and it is found by the court that this was used in the construction of the bridge. But it appears from the evidence that a part of the lumber went into the temporary structure and was afterwards carried away by the contractors; and it is claimed by the defendant that the plaintiff’s claim should be reduced by this amount. The court below held the contrary, refusing to allow the defendant to show the amount and value of the lumber used in the temporary structure, and whether in this the