Architectural Iron & Foundry Co. v. Construction Co. We consequently rule against the appellant owner the points raised here regarding the sufficiency of the lien account. IV. The evidence fully establishes the account sued upon and for which a lien is sought, showing that the labor and material in question were furnished upon the building and that the prices charged were the reasonable value of the various items thereof. Plaintiff was therefore entitled to a judgment against the contractor, and to a lien against the property of the appellant owner, for the balance claimed to be due it, less the amount, if any, properly allowable on the first counterclaim of the defendant contractor, as the referee held. V. As to the amount properly allowable on the first counterclaim two questions are here involved, viz: (1) The extent of the delay caused the defendant contractor, under its contract, by reason of plaintiff's failure to perform its contract in the time therein limited; (2) Whether the stipulation in the the contract between the contractor and the owner providing that the former shall pay $100 per day for each day's delay in completing the building to the various stages mentioned, in the time therein limited, should be held to be a penalty or liquidated damages. Of these in their order: The building consisted of compartments or sections, so designed as to be separately used for ice storage or cold storage purposes. Plaintiff's contract required that plaintiff install all of the iron and steel work of the building within fifty days from July 26, 1906; making plaintiff liable to a deduction from the contract price for any "damage or liability" for which the contractor might be "held" under its contract with the owner, by reason of any delay on plain Architectural Iron & Foundry Co. v. Construction Co. The tiffs part in the performance of its contract. period of fifty days mentioned in plaintiff's contract, being fifty calendar days, expired September 14, 1906, as the referee found; whereas plaintiff did not complete its work upon the first two "sections" of the building until October 17, 1906, and did not substantially complete all of its work until October 22, 1906. There is no dispute as to plaintiff's delay. The question is: To what extent was the contractor delayed in the performance of its contract by reason of plaintiff's delay? The contract between the owner and the contractor provides, in part, as follows: "The contractor agrees to proceed with the works comprised under this contract immediately and binds itself and guarantees to have completed two sections of the ice storage house, that is, under roof, and in such condition that the owner may install the refrigeration piping and do the insulation, which works are not comprised under this contract within a period of fiftyfive working days beyond the date of this contract; it further agrees to have the entire remainder of the building under roof and ready for like purposes for the benefit of the owner within a period of sixty-five working days from the date of this contract; and it further binds itself and guarantees to have the entire building complete in every detail within eighty days from the date of this contract." We are not concerned with the period of eighty days mentioned in this contract, since the completion of the entire building, in all of its details, in such time, was waived by the owner. Likewise, under the facts found by the referee, the period of sixty-five working days, supra, is not of consequence, since the owner sustained no damage by the delay, except for that in completing the first two sections of the building. The contractor agreed to complete these two sections in fifty-five working days from the date of its contract, which was in fact entered into on July 25, Architectural Iron & Foundry Co. v. Construction Co. 1906. It becomes important then to. determine when this period of fifty-five working days after July 25, 1906, expired, within the meaning of this contract. In computing the period of fifty-five working days from July 25, 1906, the referee excluded Sundays, holidays and rainy days, and also excluded half a day for each intervening Saturday. In the referee's conclusions of law Saturdays are referred to as "half days which by reason of labor rules were made holidays." By this method of computation the referee determined that the period of fifty-five working days expired October 10, 1906; while under the facts found by the referee this period would expire October 3, 1906, if Saturday by counted as a whole working day. We regard it as clear that the term "working days," as used in the contract, should be taken as excluding not only Sunday and holidays but also days upon which work could not be done because of weather conditions. Had this not been the intention of the parties it may well be assumed that a definite date for the completion of the work would have been agreed upon. The only extinsic evidence in the record regarding the meaning of the term "working days" is the testimony of one Helfensteller, the architect of the building. In response to questions propounded to him by the referee he testified, without objection, to the effect that by "working days" was meant days upon which weather conditions were such as to permit work to be done, i. e., where the building was, as here, not under roof; but that Saturday is a working day-"a whole working day." Though the questions asked this witness were not So framed, it is evident that it was sought to elict from him, as an architect, testimony as to a usage and custom, among architects and builders, with respect to the construction of such words in a building contract. What effect may properly be given to this testimony we need not say. We refer to it as being the only testimony respecting the matter. And in any event it is in harmony with the view Architectural Iron & Foundry Co. v. Construction Co. which we take of the general contract. While, as said, we think that the parties must have intended that days upon which work could not be done because of weather conditions would be excluded in computing the period of fifty-five working days, we know of no good reason for assuming that they intended that Saturday be counted as half a working day within the meaning of the contract. Though it be that owing to "labor rules" work was suspended on Saturday afternoons, we are of the opinion that under a contract of this character Saturday is to be construed as a working day in the absence of anything to indicate a contrary intention. There is nothing in the contract, or in the conduct of the parties as shown by the evidence, lending support to the view that Saturday was to be counted as half of a working day in computing the period mentioned. And there is no evidence that by usage and custom in such business in the community the term "working day" is to be so construed. The owner says that the term "working day" has a settled meaning, and that it includes all days except Sundays and legal holidays, citing: Pedersen v. Eugster, 14 Fed. 422; Lawson on Custom & Usage, p. 368. But we regard these authorities as without influence here. The words in question are to be here construed with reference to the nature of the contract in which they are employed; and we think that they must be taken to mean days upon which work could be done. According to the referee's findings of fact, counting Saturday as a whole working day, the period of fifty-five days expired the night of October 3, 1906. And as the evidence shows that the referee found that the first two sections of the building were completed on October 26, 1906, the general contractor was twentythree days late in completing these two sections. And under the facts found, such delay was caused by the delay of plaintiff in completing its work under its contract. Architectural Iron & Foundry Co. v. Construction Co. VI. We come then to the question of "penalty" or "liquidated damages," a question which has been the subject of much judicial discussion, and as to which the decisions of the courts have been by no means entirely harmonious. The general principles to be observed in such cases are stated in Thompson v. St. Charles County, 227 Mo. 220, 126 S. W. 1044, where many of the earlier cases in this State are cited. [See, also, Buchanan v. Exposition Co., 245 Mo. 337, 149 S. W. 26; Cochran v. People's Ry. Co., 113 Mo. 359, 21 S. W. 6; Power Company v. Independence, 188 Mo. App. 157, 175 S. W. 86; Ward v. Haren, 183 Mo. App. 569, 167 S. W. 1064.] The defendant owner, over the objections of plaintiff, introduced evidence for the purpose of showing the loss of profits in the business for which, it is said, the owner intended to use the building in question, i. e., loss of profits in the business of storing apples for that season. In this connection it may be noted that both in plaintiff's contract and in the contract of the general contractor the building is referred to merely as an ice storage house. Plaintiff, it seems, had no notice that the building was intended to be used for the storage of apples, nor does it appear that the contractor had such notice. The president of the corporate owner testified to the intention to use the building for the purpose of storing apples that season; and it appears that the company had some correspondence with apple owners regarding the storing of apples in the building during the season. The referee's findings of fact regarding the damages sustained by the owner, are as follows: "The storage season for barreled apples is from September 1st to May 1st. The movement of the local crop to the city runs from September 1st to November 1st. The height is reached between September 15th and October 15th. Contracts for the storage of barreled |