Anderson-Ross Floors, Inc. v. Scherrer Const. Co., Inc.

• Decision Date: 01 August 1978
• Docket Number: No. 77-106,ANDERSON-ROSS,77-106
• Citation: 379 N.E.2d 786,19 Ill.Dec. 914,62 Ill.App.3d 713
• Court: United States Appellate Court of Illinois
• Parties: , 19 Ill.Dec. 914 FLOORS, INC., Plaintiff-Appellee, v. SCHERRER CONSTRUCTION CO., INC., Orput-Orput & Associates, Inc., and Marshall S. Stevens, Defendants-Appellants.

Page 786

379 N.E.2d 786

62 Ill.App.3d 713, 19 Ill.Dec. 914

ANDERSON-ROSS FLOORS, INC., Plaintiff-Appellee, v. SCHERRER CONSTRUCTION CO., INC., Orput-Orput & Associates Inc., and Marshall S. Stevens, Defendants-Appellants.

No. 77-106.

Appellate Court of Illinois, Second District.

Aug. 1, 1978.

Conzelman, Schultz & Snarski, Waukegan, for defendants-appellants.

Hall, Meyer, Fisher, Holmberg & Snook, Waukegan, Jenner & Block, Chicago, for plaintiff-appellee.

SEIDENFELD, Presiding Justice:

Anderson-Ross, Inc., as a subcontractor filed suit against the general contractor, Scherrer Construction Co., Inc., the architectural firm of Orput-Orput, Inc., and the construction manager for the architect Marshall S. Stevens, to recover payment for the installation of a gymnasium floor in a grade school. Following a bench trial judgment was entered in favor of plaintiff and against the general contractor for $5180 and costs and Scherrer appeals. No judgment was entered against the other defendants.

In issue is whether the plaintiff performed in accordance with his agreement "to the satisfaction of the architect" and whether recovery may be had when no architect's certificate has been issued and the school board owner has refused to accept the work.

The record of the trial is before us on a stipulated report of proceedings, no actual transcript having been prepared. Robert E. Ross, the president of the plaintiff company, testified that Stevens was present as the representative of the architect during the installation of the flooring, had an opportunity to observe the work but made no adverse comment. He said that his corporation had been installing floors for fifteen years during which time between three hundred and four hundred of such floors had been laid. He explained the "Robbins lock-type floor system" which was the method he used. In February or March of 1971 he had the following conversation with Marshall Stevens:

"Q(by ROSS): What's the matter, MARSHALL?

A(by MARSHALL STEVENS): There are complaints of spaces between the boards.

Q(by ROSS): Sure there are a few but, you are bound to get them.

A(by MARSHALL STEVENS): Yes, BOB, it looks all right to me."

On cross-examination the witness testified that he did not return to the site after March of 1971 although the Scherrer Construction Company requested meetings.

Marshall Stevens testified as an adverse witness to his employment as a construction manager and to the fact that he was not a registered architect. He said he had a conversation with Ross at the site in the early part of 1971 but he could not remember whether he had told Ross that in his opinion the floor was typical and adequate and he would recommend payment. He identified a letter which he wrote to the general contractor on March 19, 1971, which states in part:

"We have reviewed your gym floor installation thoroughly and cannot recommend that the Owner accept and make payment until the current deficiencies are corrected. The floor throughout must have tight end joints and side horizontal joints no matter what humidity may exist in the areas. You are directed to remove all portions of floor and replace in manner to meet these requirements and all of normal requirements." (Plaintiff's Exhibit 3)

Stevens also identified a letter which he wrote to the school board on January 25, 1971, which included the following statement:

"Several specific locations were noted with cracks of 1/8 in width between boards. It was felt that normal expansion of boards in unheated months would help to close these gaps.

The Architect, Marshall S. Stevens, agreed to release of payment to Scherrer Construction Company as requested in their Periodic Estimate 12 which is 90% Of wood floors retaining 10% Or $1,590.00. This action automatically releases 'hold action' of Orput-Orput letter to Scherrer Construction Company of January 8, 1971. This decision was based upon fact that General Contractor guarantees this floor for one (1) year and flooring contractor guarantees for five (5) years during which time it was felt that any minor problems would be corrected. " (Defendant's Exhibit 1)

Stevens also testified that it was possible to have tight joints at all times. He further testified that he had observed the spaces open and close over a period of time and also that the last time he visited the gymnasium it was being put to its intended use. He said that he had advised the school board that the spaces would not adversely affect its use and that he knew of no repairs having been made to the floor.

Professor Henry L. Mikolajczyk, testified on behalf of the plaintiff, that he had been teaching for thirty-one years, and that for the past twelve years he was a professor at the University of Illinois in the matter of the technical nature of materials; that he was a registered architect in engineering in charge of design of all Chicago facilities for the University of Illinois; that he did research in the area of materials and building construction materials and was a consultant architect, a member of the Illinois Society of Architects.

Professor Mikolajczyk testified that he had examined the second grade maple used in the floor construction and its moisture content. The stipulated substance of his testimony included the following:

"He further stated that there was a relationship between the air and the wood, and that wood absorbs moisture and gives off moisture, depending upon the relative humidity in the heated building; that if no humidification equipment in the building is present, then humidity is twenty (20%) percent or less; he examined the Antioch Upper Grade School's specifications and found no humidification equipment; that to have an eight (8%) percent moisture content you need forty-five (45%) percent relative humidity and that in heated buildings that twenty (20%) percent relative humidity the moisture content of the wood would be about four (4%) percent; that if the floor was laid with an eight (8%) percent moisture content there would be a forty (40%) percent loss in the moisture content and in twelve (12) inches of second grade maple board that shrink moisture loss would be approximately three sixteenths (3/16) of an inch or less or to relate the matter to width of coins, it would allow 2-five cent pieces to be put together between the cracks in the boards with space left over.

The witness further testified that he visited the Antioch Grade School on June 23, 1976, at the end of the heating season and close to its dryest maximum shrinking potential. He spent one and one-half (11/2) hours inspecting the floors. The witness further identified Plaintiff's Exhibit No. (13), being a picture of the floors representing the spaces between the floors allowing coins to be inserted therein. The witness further testified that generally maple floors will expand when the humidity increases and shrinks when the humidity decreases; that there is no uniformity but would depend on what part of the log the wood was cut from. The witnesses (sic) asked if it were possible to have tight ends regardless of the humidity and the witness answered, 'No'. The witness further testified that there was no humidification equipment present at the time he made the examination * * * "

The subcontract was also placed in evidence (Plaintiff's Exhibit 1) showing a contract price of $10,500. As pertinent the subcontract included the following:

"(a). To furnish all materials and perform all labor for Antioch Upper Grade School Antioch, Illinois in accordance with the drawings, plans, and specifications prepared by Orput & Orput Rockford, Illinois, hereinafter called the architect, the receipt of a true and complete copy of said drawings, plans and specifications being acknowledged by the Sub-Contractor and being incorporated herein as though fully set forth at length, as the same pertains to the Sub-Contractor as follows, to-wit: Division 9-E Gym Floor furnished and installed per plans and specifications. Also includes fir flooring on stage # C105, sanded and finished. * * *

(c). Payments to be made on or about the 10th day of each month at the rate of 90% Of the value of the work erected in place during the preceding month, as determined by the Contractor or the architect and the remaining 10% Within fifteen days after the completion and acceptance of this work."

Neither the contract between Scherrer and the ...