Cassinelli v. Stacy

• Decision Date: 12 May 1931
• Citation: 238 Ky. 827,38 S.W.2d 980
• Parties: CASSINELLI et al. v. STACY.
• Court: Kentucky Court of Appeals

38 S.W.2d 980

238 Ky. 827

CASSINELLI et al. v. STACY.

Court of Appeals of Kentucky

May 12, 1931

Appeal from Circuit Court, Perry County.

Action by Troy Stacy against Peter Cassinelli, during the pendency of which defendant died, and action was revived against Filomena Cassinelli and others, his personal representative and heirs. From the judgment, defendants appeal.

Reversed and remanded with directions.

Faulkner & Faulkner, of Hazard, for appellants.

J. W Craft, of Hazard, for appellee.

RICHARDSON J.

This action was instituted by Troy Stacy, as plaintiff, against Peter Cassinelli, as defendant, to recover the balance of $789.33 alleged to be due under a contract between them for the construction of a building at Duane, Ky. The contract consists of the original and two supplemental written agreements signed by the parties. It was provided in the original that for $7,000 to be thereafter paid, Troy Stacy was to furnish the material and labor necessary to complete the building, according to the plan and specifications which are made part of the contract. The contract provided the building was to be constructed under the supervision of H. A Spaulding, and to be accepted by him, on a lot owned by Cassinelli. It was agreed in the contract that it was to be a "turnkey" job. By one of the written supplements the Hazard Lumber & Supply Company was to furnish a bill of material, Cassinelli paying for it and deducting the cost price from the $7,000, the contract price. By a second written supplement, it was agreed "that the second party shall employ first class workmen, and push the work so that the building may be completed with the least possible delay, and that it shall be completed not later than the 7th day of April 1928." Cassinelli agreed to pay the contract price on its completion and acceptance by Spaulding.

In his original petition, the execution and delivery of the contract, its terms and provisions, are set out, and this further allegation is made: "The plaintiff says that the building was completed in its entirety in a good and first-class workmanlike manner within the time fixed in the contract and supplemental contracts, and that the same has been accepted by Spaulding, the engineer for Peter Cassinelli, and Peter Cassinelli, himself, etc."

The original petition was verified. The answer to it was filed May 22, 1928. The amended answer was filed June 27, 1928. On the 12th day of September 1928, the appellee filed an amended petition wherein he withdrew the allegations of the original petition inconsistent with those in this amendment. In the amended petition this allegation is made: "During the progress of the work under the contract *** by mutual consent and agreement, between the plaintiff and defendant Peter Cassinelli, certain alterations and changes were made different from the plan and specifications prepared by H. A. Spaulding, architect and engineer *** such changes and alterations were made at the direction of said engineer of defendant and defendant himself *** which are set out in the deposition of plaintiff on rebuttal. ***" Substantially the same allegations were made in the reply to the amended answer and counterclaim. The replies to the original and amended answer and counterclaim were taken as controverted of record. A counterclaim was presented in the original and amended answers, wherein it is charged that Stacy was careless and negligent in the construction of the building; that it was not completed as provided in the original and supplemental contracts and according to the plan and specifications. It is charged therein that the foundation gave way, causing the floor to be "unlevel." The concrete wall in front of the building, by the plan, specifications, and contract was to be 2 feet thick. It was constructed one foot thick. The roof of the building leaked; the tiles in the walls of the building, the subfloor, the front basement wall, the secondary wall across the building, the 12-inch furnace pit, the joist ledges in the side walls of the building, the front arch, arch corner, the middle supports and registers, the outside tile walls, the stage doors, the front edge of the stage floor, the inside trim, and balcony were not constructed according to the plan and specifications. It is alleged that in several instances certain portions of the building were not constructed at all. The difference between the construction of these items, as required by the plan and specifications and the way in which they were constructed in the building, and the estimated cost of each item required or necessary to construct or perfect each of them, according to the plan and specifications, is set out. The total itemization thereof is alleged to be $2,176.15.

On June 27, 1928, the deposition of Peter Cassinelli was taken. He was asked about the changes made by Stacy. He testified that he (Cassinelli) had him "change the machine booth from left to right; one step, the step outside, inside, the step to go up into the balcony; and a place of a window, the front window."

The deposition of A. L. Ware, an engineer and architect, was taken on the same date. He stated in detail the difference between the building called for by the plan and specifications, and that which, in fact, Stacy erected. It is shown by him that the front coping as shown by the plans was to be 9 inches thick, and 15 inches high at the roof. It was constructed three rows of brick approximately 8 inches in height. Coping panel called for in the plan and specifications show brick material in the center of the building. It was constructed without the coping panel. The front wall, as shown by the plan, was to be 15 inches thick. It was constructed 8 inches instead of 15. The secondary wall was to be 9 inches. A gap was left in this wall several feet in dimension near the center. The coal bin, according to the plan, should have been 5 feet by 9 feet, and the wall forming it was to form a part of the center wall. It was not constructed. The boiler was to be pitted one foot below the basement level, the pit to extend over the embankment wall to protect the basement from high water. This construction was not made. The basement concrete posts were to be 2-foot square. They were constructed one-foot square, and out of plumb. The roof trusses were to be centered over the supporting pilasters on either side of the building. They were not so built. The subfloor and roof base were to "be laid diagonally." This was not done. In the roof plan, three vents, 3 feet wide and 4 feet long, were to be constructed. There were only two vents, the middle one being omitted. The bottom of the two exit doors on either side of the stage were not flush with the floor. Two platforms, 3 feet by 3 feet outside the building, were not constructed. The contract provided that in the side walls of the building sufficient holes are to be placed to support any building which may hereafter be erected on both sides of it, so that the walls of the building may be used as a support, or double wall. These joist ledges were placed at random from 16 to 40 inches, center to center. The arch supports were to be 2 feet long and 13 inches wide. They were constructed, middle supports 24 inches long and 8 inches wide, a reduction of 5 inches in the width. The floor plan called for two registers. They were not provided. The workmanship described by him is in this language:

"A. First, the outside tile wall joists have not been filled and an insufficient amount of mortar has been used and the mortar in it is now showing poor mixture, lacking of sufficient cement, and too much sand, a number of joists are still open to the weather with little evidence of mortar having been used to fill the cracks on the outside. Second, the alignment of base posts and the character of the cement or concrete produced has been heretofore outlined. Third, the main floor six feet from the stage and across the building shows a 2 1/2 inch sag in the middle. The main floor directly in front of the ticket office and across the building shows a bulge of 1 1/2 inches. These long variations show foundation troubles. The floor shows short variations as great as one inch in places, indicating that no attempt has been made or was made to level this previous to the laying of the sub-floor. Fourth, the stage truss is shimmied on the left hand side, with a 2X4 in order to give the proper support for the rafters. Fifth, the front edge of the stage floor projecting into the auditorium is left 'raw' absolutely unfinished, no attempt to panel or finish this exposed front of the stage elevation has been made. Sixth, the inside trim throughout of the building has been hurriedly and improperly applied. The baseboard gaps in places 5/8 inch from the wall. Door and window trim show wretched workmanship. Doors are not fitted to openings, showing from 1/4"' to 1/2"' clearance at the bottom. Seventh, standing on the stage looking toward the front auditorium or toward the street entrance, the balcony shows a very pronounced 'arch effect.' By test the lower projecting line of the balcony arches two inches."

He estimates the market value of the building as it was constructed at $3,000.

Mr Pelfrey, a builder and contractor, described the building in this language: "Well, the walls. The right hand front corner has a bulge in it. It bulges out at least three inches. The floor in front of the ticket office bulges up about 1 1/2 inches in the center. The floor in front of the stage is about 2 inches low in the center on account of not having proper foundation for the walls. The roof trusses are not ex-braced at all. The walls and plastering has big cracks in it and leaks when it rains. The baseboard stands away from the walls on the average of...