Miller & Sons Co. v. Homeopathic Medical & Surgical Hospital & Dispensary

90 A. 394, 243 Pa. 502, 1914 Pa. LEXIS 653

Opinion

Opinion by

Mr. Justice Mesteezat,

The facts of the case with two or three omissions have been clearly stated by the learned judge of the court below, and will be found in the reporter’s notes. They need not be restated here.

This is an action by the contractor against the owner to recover the- cost of tearing down and rebuilding the damaged part of a building being erected by the former for the latter. The amount is not in dispute. The finding of the jury was in favor of the plaintiff and under the charge the verdict established that the alleged defect in the plans and specifications did not cause the sinking of the building; that the plaintiff used all practical precautions to prevent water getting into the foundation; and that the wall fell because the soil on the defendant’s lot when excavated to the width and depth required by the contract was not sufficient to sustain the building to be placed upon it. The single question here is whether the contractor or owner is responsible for the loss resulting from the sinking of the east wing of the foundation wall caused by the insufficiency of the soil to support the building. The learned court below held the contractor responsible, and entered judgment non obstante veredicto for the defendant. The plaintiff company, the contractor, took this appeal.

The learned court below in reaching its conclusion applied the rule of absolute obligation on the part of a contractor, and held that the contract was entire and indivisible, that the contractor was required to finish and deliver a completed building to the owner, that the defect in the soil which caused the wall to fall did not excuse the contractor from the performance of the eon- ■ tract, and that therefore the latter could not recover the cost of reconstructing the damaged building. It is undoubtedly a well established rule in many jurisdictions that if one undertakes by an entire contract to erect a building for another without stipulating against unforeseen contingencies he must perform his contract and complete the building, unless performance is rendered impossible by the act of God, the law or the other party. There is no implied warranty, it is held, of the practicability or sufficiency of the plans or of the sufficiency of the soil to support the building to be erected thereon. The contractor assumes the risk in both instances, and if an injury results to the building by the happening of either contingency during the progress of the work, the contractor must sustain the resulting loss. Whether the rule in question is the law of this State we need not inquire or determine, as we are of opinion it is not applicable to the facts of this case.

The agreement between the parties to this litigation does not provide simply that the contractor shall furnish certain materials and do certain work in the construction of the hospital on a certain lot of ground in accordance with definite plans and specifications. He was not permitted to furnish such materials or do such work as he deemed a compliance with the contract for the erection of the building nor could he deviate from the plans and specifications if he found them defective or insufficient to support the building on the designated lot of ground so as to complete the building in accordance with the agreement. In other words, while he was required to furnish all materials and perform all the work for the erection of the building as shown on the drawings and described in the specifications, the materials were to be furnished and the work was to be done under the supervision and direction of the architect who was to determine the true construction of the drawings and specifications and was authorized to make such changes in the work as he might consider desirable. In addition to these stipulations, the contract provides that such additional drawings as might be necessary should be furnished by the architect and the contractor should conform to them; no alterations should be made in the work except upon the written order of the architect; the contractor should take down all work condemned by the architect ; should the contractor refuse to properly perform the work the owners, on certificate of the architect, might dispense with the contractor and complete the work at his expense; the building would not be accepted unless a final certificate was given by the architect; the workmen should be satisfactory to the architect; anything not expressly set forth in the drawings or specifications but reasonably implied to make a complete job should be furnished and performed by the contractor, but should any error appear in either of them or the work done, affecting the work included in the specifications, the contractor was required to notify the architect or make good the damages; no work should be altered without a written order of the architect; and if required by the architect the contractor was to erect a platform to make soil tests.

It will be observed that the architect employed by the owner to prepare the plans and specifications and to supervise the construction of the building had plenary power and control over the contractor. His judgment was final as to the quality and quantity of the material and the work authorized, the meaning of the plans and specifications, and their sufficiency for the erection of the building. He was authorized to make any changes in the work he deemed desirable, and the owner could discharge the contractor if he failed to comply with the architect’s orders and complete the work at the contractor’s expense. The architect could likewise change' the plans and specifications at his pleasure, and the contractor was compelled to submit and erect the building accordingly. With such extensive power lodged with the architect, we are of opinion that the rule of absolute liability of the contractor for defective plans and specifications and insufficiency of the soil to support the building is not applicable under the circumstances of! this case. The specifications clearly contemplated that soil tests would be made by the architect, and for the mánifest purpose to enable him to determine the sufficiency of the soil to sustain the building on the foundation with the footings required by the specifications and drawings, The tests were only to be made if required by the' architect. The contractor was without authority to make them, and had he made them and discovered that the soil would not support the building, his contract prohibited him from making the necessary changes in the width or depth of .the footings to insure a proper foundation. The footings provided in the drawings might have been sufficient to support the building in other soil, but they were entirely insufficient to sustain it'on the lot selected by the. owner for the construction of the building. It was, therefore, the duty of the architect under the authority expressly conferred by the contract to make the proper soil tests, and if he discovered that the soil would not support, the building he should have made the necessary changes in the width and .depth of the footings. Failing in the performance of .this duty, he and not the contractor is chargeable with "the resulting consequences. The architect, however; did make'certain tests of the soil.and, as he testified, they “were made for the purpose of satisfying yourself (himself)' as to whether, or not the building could be-safely put upon the clay.”' He decided it could'and declined to-'permit any change to be made, notwithstanding the contractor’s general superintendent and superintendent in immediate charge of the work both called his attention to the condition of the soil and suggested that the footing course should be widened. Had he ordered the change suggested Or any other change suffi cient to secure safety to the building, the contractor, under an express stipulation in the agreement, would have been compelled to obey and to make the change. On .the other hand, if . the contractor had made the* change without the express direction of the architect, it would have been a departure from the specifications and drawings which would have prevented a recovery by the contractor of any part of the contract price.

. We regard this case as ruled by the doctrine of Filbert v. Philadelphia, 181 Pa. 530, and cognate cases. It will be observed in the official report of the Filbert case that counsel cited the cases relied on by the court below and the appellee here, and they were, therefore, necessarily considered in deciding that case. What differentiates these cases from those in which the doctrine of absolute liability of the contractor is imposed is the authority of the architect or superintendent in charge to make changes in the drawings and specifications at his discretion, to supervise and direct the work, and to compel obedience by the contractor to any order the architect or superintendent may make concerning the drawings, specifications or work. Speaking of the effect of such authority, exercised in that case by the department of public works of the city, the present Chief Justice, delivering, the opinion in the Filbert Case, said (p. 545):

“It was not at any time a fixed and certain contract, as the' city through- her officials could make any changes which were deemed necessary, and the contractors were bound to build as directed.......The contractors were given no discretion. Every line was drawn, every grade was fixed and every detail was provided for by the city’. If the contractors had thought it wise to depart from the plans, and had done so and built a better reservoir, they could have recovered nothing. There would have been a deliberate and wilful departure from the terms of the contract which would have defeated their entire claim for the price. We cannot conclude that, under an agreement which might be changed from time to time,- and in which the only certain thing was that materials should be furnished and work performed ‘in strict and exact accordance with plans and specifications’ prepared or to be prepared thereafter by the city, it was intended that the contractors should do more than make a reservoir complete and perfect according to the plans and specifications furnished.”

It is manifest that the soil where the structure was being erected was insufficient to support the building, and that it was impossible to erect a substantial building there on the foundation supported by the footings provided in the drawings. This appears from the fact that the building fell and was reconstructed on a foundation having footings of double the size and extending through the clay a distance of four feet beyond the depth of the original footings. The rule of impossibility of completion for which the contractor is not responsible may, therefore, be properly invoked here as it was in Murphy v. National Bank, 184 Pa. 208. In that case the owner, as here, invoked the rule of absolute liability of the contractor for defective plans, and in holding that it was not applicable to the facts of that case this court, speaking through Mr. Justice Green, said (p. 217) :

“There is perhaps another reason why the rule invoked for the defendant is inapplicable. It has an exception if the work to be done is absolutely impossible. Upon the theory that the arches fell out because of the weakness and insufficiency of the iron work to support them, it is manifest that if the arches were replaced with the same material and with the same iron work, they would simply fall out again, and would continue doing this as often as the work was repeated. Hence if the plans and specifications were strictly followed, as it is contended they should be, it would simply result that the building never could be finished, in accordance with them, and the case would be within the exception of impossibility.”

The provision in the specifications that the contractor shall examine the plans and specifications before signing the contract, and that anything to which he does not object he guarantees as being approved by him cannot defeat a recovery in this action. Conceding the provision to be a guarantee of the plans and specifications, the building did not fall by reason of any defects in them, as found by the jury, but because the soil was not sufficient to support the building. The contractor could not reasonably be expected to know or discover the defect in the soil, and, as we have held, was not responsible under the facts of the case, for the condition of the soil which was not guaranteed by the provision of the specifications in question. But however this may be, this clause of the specifications should be strictly construed in view of the fact that the contract confers authority on the architect to change and alter the original plans and specifications as he may think desirable. He was employed by the owner and was in charge of the work as his representative with absolute power to make any changes he deemed proper. If the construction put upon the clause by the appellee be correct, it makes the contractor a guarantor not only of the original plans and specifications, but also of every change the architect may make in them, and, therefore, in effect, of the competency of the architect himself, the owner’s employee. The only limitation upon his authority in this respect is that the changes shall be consistent with the purpose and intention of the original drawings and specifications, and of this the architect himself is to be the sole judge. We do not believe that such was the intention of the parties, and, therefore, are not disposed tó put that construction on the clause in question. We agree with the appellant that the guarantee was intended to apply to the work, and as thus construed the clause will harmonize with the other provisions of the contract, and carry out the manifest intention of the parties as well as prevent the absurd result of penalizing the contractor for defective plans and specifications which the jury found were not faulty.

We are of opinion that the learned court below erred in entering judgment for the defendant non obstante veredicto, and that judgment should have been entered on the verdict for the plaintiff.

The judgment is reversed, and judgment is now entered on the verdict in favor of the plaintiff and against the defendant.