American Heating & Plumbing Co., Inc. v. West End Country Club

• Decision Date: 03 November 1930
• Docket Number: 29690
• Citation: 171 La. 482,131 So. 466
• Parties: AMERICAN HEATING & PLUMBING CO., Inc., v. WEST END COUNTRY CLUB
• Court: Louisiana Supreme Court

131 So. 466

171 La. 482

AMERICAN HEATING & PLUMBING CO., Inc., v. WEST END COUNTRY CLUB

No. 29690

Supreme Court of Louisiana

November 3, 1930

Rehearing Denied December 1, 1930

Appeal from Civil District Court, Parish of Orleans; E. K. Skinner Judge.

Suit by the American Heating & Plumbing Company, Inc., against the West End Country Club, in which defendant reconvened. Judgment for plaintiff, and defendant appeals.

Judgment set aside, and case remanded.

Merrick Schwarz, Guste, Barnett & Redmann and Lazarus, Weil & Lazarus, all of New Orleans, for appellant.

Milner & Porteous and P. M. Milner, all of New Orleans (Fred C. Marx, of New Orleans, of counsel), for appellee.

THOMPSON J. O'NIELL, C. J., dissents.

OPINION

THOMPSON, J.

This is a suit for balance due on a contract between the American Heating & Plumbing Company owned by Archibald A. Marx, and the defendant club, under which contract the plumbing company agreed to install a plumbing and heating system in the one-story frame clubhouse of the defendant.

The amount claimed is $ 3,600.12, evidenced by three certificates of the architect issued to the American Heating & Plumbing Company and assigned to the American Heating & Plumbing Company, Inc., the plaintiff herein.

The defendant denied any indebtedness to the plaintiff or its assignor and reconvened for damages resulting from a breach of the contract, in the sum of $ 3,482.80.

It is alleged that the hot water heater for the men's showers, was not properly equipped and was negligently and improperly installed. That the boiler which was a part of the hot water heater was not equipped with a safety or release valve, or other proper safety equipment.

That by reason of the improper installation of same, all in violation and breach of the terms, stipulations, and obligations under the contract, the said boiler exploded, the explosion blowing out a section of wall of the building about sixteen feet square, setting fire to the building, destroying the hot water heater and boiler itself, damaging the electrical system of the building and the sprinkler system as well as the tile roof of the building. That the amount claimed was the exact cost of the repairs caused by the explosion.

The prayer was that the American Heating & Plumbing Company, Archibald A. Marx, proprietor, be called in warranty, and after due proceedings had the plaintiff's suit be dismissed, but, should defendant be cast, then judgment should be rendered in defendant's favor against the American Heating & Plumbing Company, Archibald A. Marx, proprietor, for the sum claimed in reconvention.

An exception was filed by Archibald Marx, trading as the American Heating & Plumbing Company, to the call in warranty on the ground that the call did not disclose a legal right or cause of action against exceptor, for the reason that the contract for the heating and plumbing does not and could not support a call in warranty against either exceptor's claim or that of his assignor upon architect's certificates for materials furnished or work performed, the same being based upon alleged tort or act of negligence. It was also pleaded in this exception that the action, if any, was prescribed.

This exception and plea was filed May 29, 1928. On June 12th the American Heating & Plumbing Company, Inc., filed a plea of prescription of one year against the demand in reconvention.

And on the same day the defendant filed a supplemental petition in which, after reaffirming the allegations of its original answer, prayed that, in the event it should be cast in the suit, then it should have judgment against both the American Heating & Plumbing Company, Archibald A. Marx, proprietor, and the American Heating & Plumbing Company, Inc., for the sum of $ 3,482.80.

The case was tried on June 12, 1928, and the exceptions of prescription and of no cause of action were sustained and the reconventional demand dismissed. Thereafter on July 18, 1928, judgment was signed in plaintiff's favor for the amount sued for and sustaining the plea of prescription and the exception of no cause of action.

The first question we shall consider is the exception of no cause of action.

The explosion which caused the damage claimed by defendant occurred in February, 1923, before the certificate of final payment was issued. The three certificates of the architect sued on were issued later, one April 23, 1923, called the final payment, one dated May 5, and the other dated June 11, 1923. The second certificate is for one of the items of damages claimed by the defendant.

The contention in support of the exception of no cause of action is that the certificate of the architect evidencing the final payment of the contract price for the work is binding and conclusive on the defendant in the absence of any allegation of error, mistake, or fraud.

The contract provides that the architect named shall have authority in all matters pertaining to the contract. He shall decide upon the quality of materials and work performed, also upon all questions arising from the plans, specifications, etc. It was further stipulated that, on substantial completion of the entire work, a sum sufficient to increase the total payment to 90 per cent. of the contract price shall be paid and 10 per cent. 45 days thereafter, the balance under the contract, provided the work be fully completed and fully performed.

The contract further stipulated that the contractor shall hold the owner harmless for any damage or expense arising from the fulfillment of the contract, and at the completion of the work he shall repair all damages done.

And should any injury occur prior to the acceptance of the work by the owners, it must be made good at the contractor's expense.

"While the work is being constructed and remains unaccepted, the contractor shall be held responsible for any accident from any cause, to men, materials or property."

The contract further stipulated that the contractor guarantees to replace all defective material within one year from date of acceptance of job.

Undoubtedly the authorities support the general proposition that, where the contracting parties have stipulated that the decision of the architect on the sufficiency of the performance of the work shall be binding and conclusive, that decision will be accepted by the courts and the decision of the architect will not be set aside by the courts unless the architect's ruling is manifestly arbitrary, or is shown to have been rendered in bad faith.

But the authorities so holding are not applicable to the facts shown in this case.

In the first place there is no...