A. J. Toups Co. v. Dixie Building Material Co.

250 So. 2d 111, 1971 La. App. LEXIS 5857
CourtLouisiana Court of Appeal
DecidedJune 7, 1971
DocketNo. 4422
StatusPublished
Cited by2 cases

This text of 250 So. 2d 111 (A. J. Toups Co. v. Dixie Building Material Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A. J. Toups Co. v. Dixie Building Material Co., 250 So. 2d 111, 1971 La. App. LEXIS 5857 (La. Ct. App. 1971).

Opinion

LEMMON, Judge.

A. J. Toups, Inc., a general contractor, entered into a building contract with Jole, Inc., as owner, to construct an addition to a commercial building for a price of $40,-[112]*112870.00. Jole’s architect prepared the plans and specifications, the requirements of which included perimeter footing of concrete with a minimum crushing strength of 3,000 pounds per square inch (p. s. i.) when 28 days old.

Toups ordered concrete of this specification from Dixie Building Material Co., Inc., and Dixie delivered the concrete for the pouring of the footing. Subsequently, the architect rejected the footing because the concrete allegedly did not meet the contract specifications.

Toups sued Dixie for the cost of remedial work required by the architect and joined Jole as an indispensible party, since the owner had withheld a portion of the final payment to cover rent losses and additional expenses necessitated by the rejection of the foundation. The trial court dismissed Toups’ suit against Dixie and rendered judgment in favor of Dixie on its recon-ventional demand for the cost of the concrete. The judgment also awarded Toups the sums withheld by Jole and dismissed Jole’s third party demand against Dixie. Toups and Jole appealed from this judgment.

The purpose of the construction was to add several bays for the servicing of automobiles to an existing Goodyear Service Store owned by Jole. The addition, measuring approximately 50' x 50', was to be of concrete block walls set on grade beams.

The perimeter footing at issue is the portion of the concrete set below grade level, and this footing supports the weight of the building. To construct this footing a trench is first excavated, and the concrete footing is then poured to the depth required by the plans and is reinforced with steel. Next, the concrete grade beams are constructed, which come up to the finished level, and the concrete block walls are then built up on the grade beams.

The structual engineering requirement of minimum concrete strength of the footing is designed to prevent breaking from underneath the building.

The concrete footing was poured on April 4, 1968, and in accordance with the usual practice in commercial buildings, a testing laboratory obtained cylinder samples of each batch of concrete. Two cylinders were tested after seven days, and the architect learned by telephone inquiry several days after the testing that the results were 1,730 and 1,770 p. s. i. Although the concrete had not yet reached its ultimate strength, the representative of the testing laboratory expressed the opinion based on experience that the concrete would not meet specification requirements of 3,000 p. s. i. at 28 days.

The architect immediately notified Toups and Jole of this development, but by this time the construction of the concrete block walls was practically completed. Toups and Dixie conducted additional testing of the concrete strength, and Dixie’s concrete expert assured the parties concerned that the concrete would meet specifications. However, Toups stopped all work on the building except that which had no relation to the footing or the walls.

After 28 days a third cylinder was tested, yielding a breaking strength of 2,020 p. s. i.1 The architect therefore rejected the foundation as not being in accordance with minimum contract specifications.

Toups employed an engineer, who designed a standby footing system to relieve some of the roof load from the exterior walls. A standby structural system, consisting of a steel column and steel beam in a T-shape, was also designed. When this plan was approved by the architect, Jole agreed to accept the building upon Toups’ meeting certain requirements outlined in a letter agreement dated May 24, 1968. Toups installed the additional footing and met the other requirements, and the building was thereafter completed about the end of June, one month after the contract completion [113]*113date. Jole withheld certain amounts from the final payment to Toups, since in the letter agreement Toups agreed to reimburse enumerated expenses incurred by Jole because of the footing problems and associated delays. The retainage included the cost of the standby structural system, which was not installed but which was designed as a future precautionary measure.

From the foregoing chronology it is obvious that the pivotal issue in the action against Dixie is whether or not the concrete supplier fulfilled its contractual obligation to deliver concrete with minimum specifications of 3,000 p. s. i. crushing strength.

Normally, the testing of the cylinders obtained at the pouring is the only testing performed to insure the minimum strength requirements. However, since these test results were far below the minimum, Toups had additional tests performed in an attempt to prove up the concrete strength.

The second series, called the Swissham-mer tests, were performed approximately 30 days after the pouring and produced the following results:

Area 1 - 1,800 p. s. i.
Area 2 - 1,875 p. s. i.
Area 3 - 2,325 p. s. i.
Area 4 - 2,500 p. s. i.
Area 5 - 2,750 p. s. i.

It is admitted that this test, which has a variable of 15%, is not as accurate as the crushing test performed on the cylinders. However, even if it is assumed that the Swisshammer test results were 15% on the low side, only one area would have met the minimum specifications (2,750 + 15% or 312 = 3,062).

Also on the 30th day three core samples were extracted from the footing, and crushing tests were performed, giving readings of 2,210, 2,600 and 1,670 p. s. i.

Subsequently, another testing procedure was undertaken to analyze the contents of the cores to determine the quantity of cement in the total mix, which is composed of cement, water, gravel and sand. The architect and two concrete experts who testified all agreed that 5 to S}/z sacks of cement per cubic yard of concrete mix are recommended to produce 3,000 p. s. i. crushing strength at 28 days. However, the quantitative analysis of two samples revealed 3.39 and 3.87 sacks of cement per cubic yard of concrete.

Thus, of the numerous tests performed in the four series of analyses, none of the actual readings reached the minimum requirement.

On the other hand, a concrete expert who testified on behalf of Dixie stated that Swisshammer tests performed by him before the 28th day produced readings from 2,200 to 2,600 p. s. i., with one reaching 2,800 p. s. i. He testified from memory and did not make written recordings of these results.

On the basis of these tests, he advised Dixie that the concrete would achieve the required strength at 28 days. However, he also testified that someone at the job site had remarked that water had been added to the mix (which was denied by the architect who was present at the pouring), and this would have the effect of destroying the cement-water ratio and lowering the strength of the concrete. In our opinion this remark as to his suspected reason why the concrete strength was below standard is inconsistent with his telling Dixie “to relax” because his test results were satisfactory. Furthermore, the expert volunteered that he believed the engineer had required 3,000 p. s. i. with a designed safety factor.

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Related

Bewley Furniture Co., Inc. v. Maryland Casualty Co.
285 So. 2d 216 (Supreme Court of Louisiana, 1973)
A. J. Toups Co. v. Dixie Building Material Co.
253 So. 2d 65 (Supreme Court of Louisiana, 1971)

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Bluebook (online)
250 So. 2d 111, 1971 La. App. LEXIS 5857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-j-toups-co-v-dixie-building-material-co-lactapp-1971.