111 F.2d 875 (7th Cir. 1940), 7114, Economy Fuse & Mfg. Co. v. Raymond Concrete Pile Co.

Docket Nº:7114.
Citation:111 F.2d 875
Case Date:May 06, 1940
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 875

111 F.2d 875 (7th Cir. 1940)




No. 7114.

United States Court of Appeals, Seventh Circuit.

May 6, 1940

Page 876

William A. Morrow, Walter M. Fowler, and Gardner, Foote, Morrow & Merrick, all of Chicago, Ill. (Robert L. Elliott, Jr., of Chicago, Ill., of Counsel), for appellant.

Edward R. Adams, Herbert C. De young, Amos C. Miller, Robert W. Wales, and William Simon, all of Chicago, Ill., for appellee.

Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

Plaintiff appeals from a judgment based upon a ruling overruling plaintiff's demurrer to defendant's plea of the Statute of Limitations to each count of the declaration. The pleadings, filed when common law procedure was the rule in Illinois, were, as provided by the Conformity Act, 28 U.S.C.A. § 724, in accord with that practice.

The declaration contained seven counts, paragraphs 1 to 5, inclusive, of each of which are identical and include substantially the averments following. Plaintiff, having decided to erect a building for the housing of its office, machinery and equipment, feared it might be difficult to obtain proper support for the foundation and deemed it advisable to avail itself of expert advice and skill in order that it might surely obtain the desired adequate support. Defendant had, for a long time, been engaged in the business of manufacturing and installing concrete piles for supports for foundations, holding itself out to the public as possessing expert knowledge, skill and experience in such work and as constantly furnishing to its clientele material and workmanship suited to the purpose for which it might be intended.

Plaintiff informed defendant of the character of the proposed building, of the use for which it was intended, of the necessity

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of excavation and refilling and of the desire to have installed piles that would furnish adequate and proper support. Thereafter defendant submitted a proposal in writing to manufacture and install the piles. Confiding in and relying upon this offer and the knowledge and experience of defendant, plaintiff accepted in writing the proposal, which thereupon became a written contract.

Under this agreement, defendant proposed to furnish 'all tools, material and labor for, and install' concrete piles for the 'foundation of the proposed building.' The writing expressly provided that the concrete should be composed of 'one part good Portland Cement; three parts sharp sand and five parts crushed stone or gravel of suitable size, which shall be carefully mixed and placed in the shells. ' No additional specifications were prescribed except that the piles were to be of certain dimension and length. The work was to be 'pushed to completion as speedily as is consistent with good workmanship.'

Defendant entered upon the performance of the contract and made, placed and installed 255 piles. Plaintiff relied upon the performance of the work as of such character as to furnish adequate support, paid for it according to the prices stipulated, proceeded to erect the building at a cost of $425,000, and placed therein its equipment and machinery.

The sixth and last paragraph of each count states wherein it is claimed defendant broke its contract and sets forth the damages alleged to have resulted. Thus, in count 1, it is averred that by virtue of the contract, defendant agreed and warranted that it would furnish 'sufficient and adequate support for the foundation and building proposed to be erected'; that the piles built were insufficient and inadequate for such purpose and that, as a result, the building sank and settled to the damage of plaintiff.

In count (2) the comparable averment is that by the contract defendant agreed and warranted to plaintiff that the piles 'would be reasonably fit and suitable to sustain and support the foundation and building'; that the piles built were unsuitable, unfit...

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