Baxter Bros. v. Mart Free Bed Guild of Grand Rapids

73 N.W.2d 315, 343 Mich. 578
CourtMichigan Supreme Court
DecidedDecember 1, 1955
DocketDocket No. 22, Calendar No. 46,562
StatusPublished
Cited by1 cases

This text of 73 N.W.2d 315 (Baxter Bros. v. Mart Free Bed Guild of Grand Rapids) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baxter Bros. v. Mart Free Bed Guild of Grand Rapids, 73 N.W.2d 315, 343 Mich. 578 (Mich. 1955).

Opinion

Reid, J.

Plaintiffs, subcontractors, brought this action in assumpsit on express and implied contract for extras furnished defendant in connection with the construction of an addition to a children’s hospital and orthopedic center owned and operated by defendant. The case was tried by the trial judge without a jury. Plaintiffs appeal from a judgment for defendant of no cause of action.

Defendant entered into a general contract with Barnes Construction Co., Inc., on April 13, 1950 for construction of an addition to the hospital for a total cost of $165,361. The general contract did not include electrical, plumbing and heating and kitchen installations, which were covered by other contracts.

The general contract, among other things, contained the following:

“Paint colors shall be selected by the engineér. Before any work is done the engineer will furnish the contractor with a set of color cards and a schedule showing where the various colors shall go.”

The general contract also contained the following:

Page 2, paragraph 5. “Supervision. All work shall be done under the supervision of the architect designated by the owner. The architect shall determine the amount, quality, acceptability and fitness of all parts of the work, shall interpret the specifications, contract documents and any extra work orders, and shall decide all other questions, in connection with the work. The architect shall have no authority to approve or order changes in the work which alter the terms or conditions of the contract. Upon request, the architect shall confirm in writing any oral order, direction, requirement or determination.”
[580]*580Page 7, paragraph 23. “Subcontracts, (a) Nothing contained in the specifications or drawings shall be construed as creating any contractual relationship between any subcontractor and the owner. The divisions or sections of the specifications are not intended to control the contractor in dividing the work among subcontractors or to limit the work performed by any trade.”

Plaintiffs were the successful bidders on the painting of the new addition and agreed to complete the painting and decorating in accordance with the plans and specifications. Their bid in final form was for $4,992. The subcontract was between Barnes Construction Company, the general contractor, and plaintiffs as subcontractors. Defendant was not a party to the subcontract.

The general contract between Barnes Construction Company and defendant also contained the provision :

Page 14, paragraph 44. “Extras. Except as otherwise herein provided, no charge for any extra work or material will be allowed unless the same has been ordered in writing by the owner and either the price stated in such order or definite acknowledgment made that a change in price is involved subject to later determination.”
Page 14, paragraph 45. “Changes in Work, (a) The owner may at any time, by a written order, and without notice to the sureties, make changes in the drawings and specifications of this contract and within the general scope thereof (except that no change will be made which increases the total contract price to an amount more than 20% in excess of the original contract price without notice to sureties).”

Plaintiff did not get written approval for the extras sued for. No price was discussed for the extras. If an area was finished and the owner did not like [581]*581it, and had the painter do it over, that would constitute an extra, according to the claim of plaintiffs.

Plaintiffs made no claim for extras, either against Barnes the general contractor or against the defendant, until the work was virtually all done. A claim for the extras was by way of letter written by plaintiffs to defendant dated June 7, 1951, in which letter plaintiffs set forth factors claimed by plaintiffs to cause the work covered by the plaintiffs’ contract with the general contractor, to cost more than anticipated. Among other , things, the letter specified (1) that Baxter in making the bid contemplated that the building would be ready for decorating during the last winter months of 1950-1951, which were plaintiffs’ customary “slow months,” but that plaintiffs were not given a. chance to start their work until “after our ‘spring rush’ was under way;” (2) that before plaintiffs were permitted to start their work there was one wage increase and that a second wage increase occurred after the job was under way; (3) that it became apparent before the job was half done that the plaintiffs would lose money on the contract; and (4) plaintiffs further state in their letter that plaintiffs did not specifically seek requisitions for any of these items but have gone ahead and completed items that needed doing. None of the above statements indicate anything for which the owner (defendant) would be liable. i

In their bill of particulars filed June 30, 1953, the plaintiffs specify the number' of hours of labor and total cost of labor and also, items of material used and total cost thereof, totaling in all, $8,316.07,-“less credit for payment by Barnes Construction Company for portion of above work supplied under contract, $4,992, balance due $3,324.07.” This balance is “for labor and materials furnished in connection with the painting and decorating of the new Mary Free Bed addition from March 5,1951 to June [582]*58215, 1951,” which words seem to indicate a total cost for labor and materials furnished by subcontractors (plaintiffs) on the job rather than for extras furnished on the job on orders from the owner (defendant). On January 7, 1954, the same day of the conclusion of the trial, the plaintiffs filed a “supplemental bill of particulars,” containing some 17 specifications as follows:

“The following is a supplemental bill of particulars of the plaintiff’s demands covering extra items not included in plaintiff’s bill to Barnes Construction Company, and for the recovery of which this suit is brought:
“Material and labor used in applying an extra coat to all third floor ceilings .. . $220.00
“Material and labor used in repainting certain wall areas in stairway, as a result of damage by men who installed railings ............................ 70.00
“Material and labor used in repairing and repainting third floor walls due to damage from leaks...................... 50.00
“Material and labor used in changing color of third floor walls, including boys dormitory, girls dormitory and two 4-bed wards.......................... 220.00
“Labor and materials to repair and repaint nursery and isolation rooms on second floor due to damage resulting from installing new pipes in toilets . . 110.00
“Labor and materials to repaint physical therapy room due to change of color (2 coats) .......................... 150.00
“Labor and material for repairing and repainting miscellaneous walls throughout due to installation of electric outlets .. . ............ _ ____....... 150.00
[583]*583“Labor and materials in repairing, spot priming and repainting of about 10 toilets due to pipe installation after we had completed our work.............. 280.00

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Related

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83 N.W.2d 310 (Michigan Supreme Court, 1957)

Cite This Page — Counsel Stack

Bluebook (online)
73 N.W.2d 315, 343 Mich. 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baxter-bros-v-mart-free-bed-guild-of-grand-rapids-mich-1955.