Brookings Lumber & Box Co. v. Manufacturers' Automatic Sprinkler Co.

• MELVIN,

We will treat this as an appeal from the judgment and from an order denying plaintiff’s motion for a new trial, although respondents contend that no efficient appeal was made from the order, owing to the failure of plaintiff to serve them with proper notice.

Plaintiff entered into a written contract on July 7, 1910, with the Manufacturers’ Automatic Sprinkler Company, whereby the latter agreed for a certain consideration to install in the former’s box factory an improved “wet-pipe” system of automatic sprinklers and fire-extinguishing apparatus. On September 22, 1910, and while the sprinkler company was putting in the pipes for the installation of said system, a fire broke out in the box factory and destroyed it. The plaintiff corporation sued for fifteen thousand dollars damages alleging that when the fire occurred the work was being done in a dilatory manner; that the manufacturers’ company had agreed to install the system within three weeks following July 10, 1910; and that if this promise had been kept, or if within a reasonable time the work had been completed, the fire would have been extinguished and plaintiff’s loss prevented. The Automatic Sprinkler Company of America is sued as the successor to the obligations of the other corporation defendant. By a second count the latter company is sued for five hundred dollars money had and received from plaintiff on the twenty-ninth day of September, 1910.

After trial the court made findings substantially support

[681]

ing defendant’s contentions, namely, that the contract had been made as alleged; that the'Manufacturers’ Automatic Sprinkler.Company had not agreed that the apparatus should be installed within three weeks from July 7, 1910; that the said corporation had not represented or warranted that its system when installed would extinguish all the fires which might originate in plaintiff’s premises; that the Manufacturers’ Automatic Sprinkler Company had performed its contract until prevented by the fire from doing further work; that on September 22, 1910, when the fire occurred, plaintiff had not performed its part of the work, namely, the putting in of the underground supply pipes; and that had the apparatus been installed the fire could not have been extinguished. It was further found that plaintiff had a verbal agreement with an agent of the Manufacturers’ Automatic Sprinkler Company that the apparatus would be installed within three weeks following July 17, 1910, but said agreement was not binding because the agent was not authorized to make it. A waiver of the alleged oral agreement was found, and likewise a waiver of any breach of the contract by reason of delay in the performance thereof. The court also found that by its implied terms the written agreement was to be performed within a reasonable time, and that at the time of the discontinuance of the work a reasonable time for completing the installation had not elapsed. There were additional findings that any delay in the execution of the work was not a proximate cause of the loss by fire of plaintiff’s buildings. Regarding the payment of five hundred dollars, it was found that, this sum was a first installment on the contract, being money due under the terms thereof, and that plaintiff had waived any claim to said sum.