Budd v. J. Y. Gooch Co.

• Decision Date: 31 July 1942
• Citation: 151 Fla. 262,9 So.2d 633
• Parties: BUDD et ux. v. J. Y. COOCH CO., Inc., et al.
• Court: Florida Supreme Court

9 So.2d 633

151 Fla. 262

BUDD et ux. v. J. Y. COOCH CO., Inc., et al.

Florida Supreme Court

July 31, 1942

Rehearing Denied Sept. 25, 1942.

Appeal from Circuit Court, Dade County; Ross Williams Judge.

Robert C Lane, of Miami, for appellants.

Bouvier Goldberg & Haskins, of Miami, for appellee J. Y. Gooch Inc.

Thomas J. Ellis, of Tallahassee, for appellee Robert L. Weed, Architect, Inc.

CHAPMAN, Justice.

During the year 1936 R. D. Budd was the owner of certain lots situated in Section 3 of Miami Shores, Dade County, Florida. He employed Robert L. Weed, Architect, Inc., to design a residence costing approximately $25,000 to be constructed on his lots located in Miami Shores. The plans and specifications of the residence as prepared by Weed & Company were accepted and the architectural services of the latter retained and compensation agreed upon as six per cent of the total cost of construction of the residence.

On July 25, 1936 R. D. Budd entered into a written contract with J. Y. Gooch Co., Inc., whereby the latter stipulated and agreed to construct the residence on the property of Budd according to the plans and specifications of Weed & Company, Architects, for the total sum of $23,175, plus additional work, if any, ordered by Budd. Subsequent and additional work was performed by the contractor for Budd at a cost of $1,681.72, making the total cost of the residence in the sum of $24,856.72. It is alleged that Budd paid the sum of $24,856.72, less the amount of $5,431.09. The residence was certified, with minor exceptions, as completed on February 8, 1937. The contractor, J. Y. Gooch Co., Inc., filed suit in the Circuit Court of Dade County under the provisions of Chapter 17097, Acts of 1935, Laws of Florida, to enforce and foreclose a lien. Likewise the architect Weed asserted a lien on the property for the balance due for architectural services in the sum of $974.16.

In a counter claim filed by Budd against the architect Weed & Company, it was admitted that the latter was employed to design his proposed residence and after acceptance of the designs, they were engaged to prepare the specifications and render inspection services during construction at a sum of six per cent of the total cost of construction; that while the balance of $974 may be due under the terms of employment, but that several acts of negligence on the part of the architect committed while so employed resulted in heavy losses to the owner and when these several amounts are set off against the asserted claim of Weed & Company there will remain due a large sum of money by Weed & Company to Budd.

The acts of negligence alleged to have been committed by the architect are, viz.: (a) The architect neglected to take soundings of the land where the residence was to be constructed to thereby determine the sufficiency of the foundation to support the weight of the building, and as a result the walls and floors of the building cracked and the building sank in excess of the customary settlement, and the owner, Budd, placed additional foundations under the residence at a total cost of $869.42; that sound engineering principle required the construction of the house upon pilings; (b) the architect was negligent in specifying double hung, spring control, type of windows of a named manufacturer, which were improper and not designed for residences, and had to be replaced at a cost of $3,227.04; (c) an insecure foundation under the Terrazzo floors of the living and dining rooms was the proximate cause of cracks which were repaired at a cost of $233.48; (d) for specifying improper timbers or steel insufficient in size to support the bathrooms, thereby causing the floors to sag and to crack and the costs of repairs were in the sum of $13.32.

The owner, Budd, counter claimed against J. Y. Gooch Co., Inc., for the negligent and unworkmanlike manner in which the construction contract was performed and asserted the performance thereof by the contractor was not in accordance with the plans and specifications. The owner seeks a decree against the contractor, viz.: (a) The sum of $125 necessarily paid by the owner to complete the Terrazzo stairway in a workmanlike manner; (b) $3,115 for changing the steel sash to wood sash; (c) $451.77 necessarily expended to place the plastering in a good workmanlike manner; (d) the cost of repainting the interior of the building; (e) $25.03 for replacing and re-setting tile; (f) $1,500 for an unreasonable delay in the completion of the building, on the theory that the same could have been rented for said sum to tourists had it been earlier completed; (g) additional miscellaneous items at stated amounts are counter claimed. A joint and several liability as to some of the enumerated items is asserted against Weed & Company and J. Y. Gooch Co., Inc.

On the issues presented considerable testimony was adduced by the parties before the Master, and after the completion thereof his report and recommendations as to a decree were presented to the Honorable H. F. Atkinson, Circuit Judge, and was heard upon exceptions to the filing of the Master's report and recommendations as to a final decree.

In the order dated June 14, 1939, Honorable H. F. Atkinson Circuit Judge, expressed an opinion,...