Masters & Mullen Const. Co. v. Cleveland (School Dis.)

March 4, 1919, the construction company made a contract with the Board for the carpentry work on a school building to be completed by August 15, 1919, the contractor being subject to daily penalties for delay. Before the carpentery work could be commenced it was necessary that the m|asonry work should be completed, and the construction company claimed that the defendant Board delayed the masonry work so that the carpentry work could not be commenced until the following January.

The construction company notified the Board that the delay would result in additional expense for which it would hold the Board responsible, but the Board requested it to go ahead, which it did to its loss on account of rise in prices of labor and material, for which loss the construction company brought suit. The contract provided that the Board might order a discontiuance for a time of the work, postponing the completion of the building, allowing additional time and releasing the contractor from! penalty therefor, and that claims by the contractor for damages by reason of any delay on the part of the Board or its agents would not be allowed, but any such delay should work a corresponding extension of time.

The trial court entered judgment for the Board on the pleading, which was affirmed by the Court of Appeals. Plaintiff in error claims that the contract provision against allowance of claimls for damages for delay applies only to discontinuance for reasonable times, and not to, a delay in turning over the site, throwing the beginning of the work into the next year; and that if the provision applies to such a delay as was suffered, then being without limit in time, it is void for want of mutuality.