Foley Co. v. L.G. Barcus & Sons, Inc.

660 S.W.2d 307, 1983 Mo. App. LEXIS 3629
CourtMissouri Court of Appeals
DecidedSeptember 20, 1983
DocketNo. WD 33461
StatusPublished
Cited by1 cases

This text of 660 S.W.2d 307 (Foley Co. v. L.G. Barcus & Sons, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foley Co. v. L.G. Barcus & Sons, Inc., 660 S.W.2d 307, 1983 Mo. App. LEXIS 3629 (Mo. Ct. App. 1983).

Opinion

KENNEDY, Judge.

L.G. Barcus & Sons, Inc., defendant and appellant, had a contract to construct a railroad tunnel for Armco Steel Corporation. Barcus subcontracted to Foley Company, plaintiff and respondent, a part of the project, to install discharge lines and pumps which would carry water from underneath the tunnel over a levee. The drainage water would collect in a concrete pump pit, or pump station, and from there would be pumped over the levee.

When Foley had completed the work under its subcontract, and before its acceptance by owner Armco and general contractor Barcus, a test showed that the lines were leaking water. A dispute arose between Barcus and Foley as to which of them was responsible for repairing the faulty line. Foley denied responsibility. Barcus proceeded to repair the line at a cost of $13,601.04. Foley brings this action to recover from Barcus the sum of $9,953.59 retained by Barcus under the terms of their contract pending satisfactory completion of the work. Barcus claims it is entitled to retain the amount of retainage, and brings a counterclaim against Foley for the balance of its cost of repair, $3,647.45.

The replacement of the broken joint involved a great deal of excavation to reach the joint; cutting out the broken fitting; replacing and refitting the same; and back-filling the excavation. There is no claim that the cost claimed by Barcus was excessive, nor is there any claim by either party that the cost of repair should be apportioned between them in any way. The case has proceeded on the assumption that Foley should pay all the cost or none of it.

The trial court found for Foley on all counts, both on the claim and the counterclaim, and rendered judgment for Foley on its claim against Barcus for the $9,953.59 retainage, and also found for Foley on Bar-cus’s counterclaim.

It was the trial judge’s task, now ours, to apply to the facts the subcontract between the parties.

The facts are not in dispute.

[309]*309Foley began work under its subcontract in April of 1979. Its subcontract required excavation of a considerable amount of dirt. The discharge pipes were to be laid 10 to 15 feet below the surface of the ground and it was Foley’s duty to excavate the overlay. The pipes were of cast iron. Two of them, including the one in which the break occurred, were 20 inches in diameter. The third was 8 inches in diameter. In accordance with the contract terms, the pipes were furnished to Foley by Barcus.

After the pipe was laid and covered with a foot or two of fill dirt, it was tested by the injection of air and was found to be airtight. This test was conducted June 25, 1979. The excavation was then backfilled to a depth of 10 to 15 feet. It was Foley who did this backfilling. At the point where the leak was later discovered, near the pump station, the overlay of earth was left at that depth, although it was graded up from there, during the year between the Foley backfill and Foley’s return to install the pumps, at a steep incline an additional 10 or 12 feet. The additional fill was put in place by another subcontractor of Barcus, and not by Foley.

Almost a year passed after the interim test and the backfill, when Foley returned for the final part of its job, which was to install pumps inside the pump station. This was done on May 28 or May 29, 1980. The pumps were turned on and water was pumped into the pipes. Water began to bubble up through the ground at a point directly outside the pump station.

The cause of the leak proved to be a break in a cast iron fitting in the pipe at a joint immediately outside the pumphouse wall. Engineer Browne testifying as an expert gave it as his opinion that the cause of the break might be caused by failure to tighten the 15 to 18 bolts connecting the joint at an equal pressure, creating an extraordinary strain on the pipe, or, as a second possibility, an “extremely heavy” load that the pipe had been subjected to from above. He could not choose between the two possible causes.

Contract as placing upon subcontractor risk of loss from undetermined cause.

Appellant Barcus’s position is stated in his brief as follows: “... (T)he subcontract places the risk of loss for any damage to the work ... until acceptance by the owner ...” It would not be unfair to characterize its position as being that the subcontractor was to deliver a finished product which complied with the contract specifications.

Foley on the other hand claims that it performed all its obligations in a workmanlike manner and that it is not responsible for damage to the pipe from some undetermined cause.

The “leak test” to which the pipe was subjected on June 25, 1979, was a test required by the general contract between owner Armco and general contractor Bar-cus. It was conducted with approximately two feet of dirt over the pipes, and before the excavation was completely backfilled.

Mr. Kaul, an engineer in Armco’s employ, explained:

Q. And why was this test done at that time?
A. Well, the next step after this was to backfill the line and bury it eight to ten feet deep; and if there was a leak to appear, why this was the time to make any necessary repairs, before we went ahead with the backfill ...
Q. Now, did that test, that static pressure test, as far as Armco was concerned, have anything to do with the acceptance of the work, or any portion of it?
A. Not really. It said to us that, “Okay. The pipe appears to be — well, it will not leak beyond the acceptable amount and we can proceed with the next step in construction.”
Q. And when was it that Foley, as best you can recall, after the test was performed and they did whatever backfill that they did, what was the next thing that you can recall that they did, Foley?
A. At the pump station, they did nothing else until about, I believe it was about May of 1980, the tunnel was basically [310]*310complete at that time and they came in to install the pumps, install the pumps that come up through the discharge pipe. Here is a case where it cannot be deter-

mined whose is the fault for the cracked pipe. The contractor and the subcontractor tacitly agree that one of them must bear the responsibility and the loss occasioned by the broken and leaking pipe.

The parties foresaw such an eventuality as this. They undertook to provide for a case in which there would be a loss which could not be accounted for by the fault of either party. They did provide for such an eventuality by language which seems to be clear. Paragraph 15 of the subcontract reads as follows.

RESPONSIBILITY FOR WORK: Subcontractor shall be responsible for all materials and equipment delivered and work performed hereunder until completion and final acceptance of the work, and upon completion of the Subcontract the work shall be delivered complete and undamaged. ..

Paragraph 17 carries out the same theme. It reads in part as follows:

17.

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Bluebook (online)
660 S.W.2d 307, 1983 Mo. App. LEXIS 3629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foley-co-v-lg-barcus-sons-inc-moctapp-1983.