Cleveland Wrecking Co. v. Struck Const. Co.

• Citation: 41 F. Supp. 70
• Decision Date: 15 September 1941
• Docket Number: No. 212.,212.
• Parties: CLEVELAND WRECKING CO. v. STRUCK CONST. CO. et al.
• Court: U.S. District Court — Western District of Kentucky

41 F. Supp. 70

CLEVELAND WRECKING CO. v. STRUCK CONST. CO. et al.

No. 212.

District Court, W. D. Kentucky.

September 15, 1941.

COPYRIGHT MATERIAL OMITTED

James E. Fahey, and Woodward, Dawson & Hobson, all of Louisville, Ky., for plaintiff.

Wm. Furlong and Wm. W. Crawford, both of Louisville, Ky., for defendant Struck Const. Co.

Lawrence S. Poston and Hal O. Williams, both of Louisville, Ky., for defendant City of Louisville Municipal Housing Commission.

MILLER, District Judge.

This action was brought by the plaintiff Cleveland Wrecking Company to recover from the defendants Struck Construction Company and City of Louisville Municipal Housing Commission the sum of $6,762.71 with interest, being the damage suffered by reason of being deprived through acts of the defendants of certain fixtures and equipment which the plaintiff claims it was entitled to as salvage from a demolition job undertaken by it. A jury trial was waived by the parties.

Findings of Fact

The plaintiff Cleveland Wrecking Company (hereinafter referred to as Wrecking Company) is a Maryland corporation engaged in demolition work. The defendant Struck Construction Company (hereinafter referred to as Construction Company) is a Kentucky corporation engaged in the contracting and construction business. The defendant City of Louisville Municipal Housing Commission (hereinafter referred to as Housing Commission) is a Kentucky corporation created for the purpose of constructing and operating Municipal Low Rent Housing Projects under the provisions of Sections 2741 × 1 to 2741 × 10 of the Kentucky Statutes, and with powers as conferred therein.

Shortly prior to April 13, 1939, the Housing Commission made plans to acquire title to a tract of land in Louisville, Kentucky, and to erect thereon a low rent housing project, which it designated as West End Project Ky. 1 — 2. Under date of April 13, 1939 it issued in book form its "Specifications for Low Rent Housing Project Ky. 1 — 2," which contained a complete and detailed recitation of the work to be done, and which were distributed by the Housing Commission to general contractors and subcontractors for the purpose of bidding upon the proposed construction. The Housing Commission requested bids to be submitted by May 4, 1939. The plaintiff became interested as a sub-contractor in doing the demolition work and some of its officers familiarized themselves with the specifications and in particular with those pertaining to the demolition and clearing of the site. Sections 14(a) and (b) of the Special Conditions set out in said Specifications provided as follows:

"14. Ownership and Existing Conditions of Site:

"(a) Upon receipt of notice by the Contractor for Demolition, Construction & Site Improvement to proceed with the work on any part or all of the premises, all right, title and interest of the Local Authority in and to the buildings, property and improvements to be demolished and removed by said Contractor, the structures then located on said part or all of the premises described in such notice shall be deemed to be vested in said Contractor, who shall accept said premises in the condition then existing and the Local Authority shall not be liable for damages due to pilferage or other causes, there shall be no adjustment in the Contract Price because of any change in the condition of said premises subsequent to the date of advertisement for bids. The Local Authority will however take every reasonable precaution to guard the premises, by employing watchmen carrying fire and windstorm insurance in order to preserve existing values, up to and including the date of receipt of notice of said contractor to proceed. Subject to the applicable provisions of the Contract Documents, said Contractor shall be entitled to the buildings, structures and improvements to be demolished and removed including all fences and all lumber, brick, structural steel, glass, piping, miscellaneous metal, etc., salvaged from the buildings, but all piping, conduits, cables and other equipment belonging to the public service companies shall not become the property of said Contractor unless abandoned by the various companies owning or controlling the same; and personal property of third persons or tenants shall not become the property of said Contractor.

"(b) It shall be the duty of said Contractor to secure from the Local Authority all necessary information regarding the record of conditions of conveyance and occupancy of properties and improvements, on the site, prior to submitting a bid."

Pursuant to provisions of Special Condition 14(b) the plaintiff requested the Housing Commission to furnish it with all necessary information regarding the conditions of conveyance and occupancy of properties and improvements on the site, which would affect the properties and salvage which the demolition contractor would receive for part consideration for his work. Under date of April 29, 1939, the Housing Commission sent to the Wrecking Company certain data pertaining to the improvements to be demolished, which contained data with reference to property located at 1016-1024 Cedar Street, Louisville, Kentucky, belonging to Benjamin W. Richard and Cecelia T. Richard, and which was under lease to Shoppenhorst Laundry at the time, and pertaining to property at 1114-1122 West Liberty Street, Louisville, Kentucky, belonging to the Campbell Company. With reference to these two pieces of property the data stated "these owners will have the right to remove all fixtures and equipment pertaining to their business." Immediately thereafter the plaintiff's engineers and employees carefully inspected the improvements to be demolished, including the Shoppenhorst property and the Campbell property and made an inventory of all equipment and fixtures pertaining to the use and construction of the buildings. Based upon this inspection and upon its valuation of the salvage which could be obtained by the wrecker upon the demolition of the said improvements, the plaintiff submitted to the defendant Struck Construction Company and to other contractors its bid for doing the specified demolition work. Thereafter the Construction Company submitted its bid on May 4, 1939, to the Housing Commission, which bid was based in part upon the plaintiff's bid to it. The Housing Commission accepted the bid of the Construction Company, and on May 24, 1939, executed a written contract with the Construction Company to that effect. The Construction Company immediately notified the plaintiff that its bid for the demolition and site clearing work was accepted, and a written contract was entered into between the plaintiff and the Construction Company for this work on June 9, 1939. The contract between the Housing Commission and the Construction Company contained this provision: "All works shall be executed in strict accordance with the advertisement for bids dated April 13, 1939, specifications and the drawings which are made a part hereof and designated as follows * * *". The contract between the Construction Company and the plaintiff contained this provision:

"In consideration of the contract price to be paid the Contractor to the Sub-Contractor, the Sub-Contractor agrees with the Contractor as follows:

"1. To furnish all materials, labor, services, tools, equipment, utensils and other things necessary to construct and complete the work to be done under this sub-contract in strict accordance with the contract between the Contractor and the Louisville Municipal Housing Commission as referred to above. The Sub-Contractor agrees to be bound to the General Contractor in all respects and in like manner as the Contractor is bound to the Louisville Municipal Housing Commission so far as the contract between the Contractor and the Commission applies to the work to be done by the Sub-Contractor. The Sub-Contractor represents and declares that he has read and fully informed himself as to the contract between the Contractor and the Commission and accepts the obligation assumed hereunder with full knowledge of his obligations."

Thereafter on May 29, 1939 the Housing Commission completed its purchase of the Campbell Company property (1114-1122 W. Liberty Street) and secured from the Campbell Company its deed of that date conveying the property to the Housing Commission. This deed was recorded on the same day and contained the following provision: "The party of the first part hereby reserves the right to remove and retain, from said property, all machinery and equipment, boilers, pipes, elevator, wiring and fixtures, and in fact everything contained in the factory building on said property, except the wall, roofs, floors, doors and windows, it being understood that said first party shall be under no obligation to remove any of said above property from said premises, which said first party does not want, nor shall said first party be liable in any degree for the condition in which the said premises are left." Thereafter on May 31, 1939, the Housing Commission completed its purchase of the Shoppenhorst property (1016-1024 Cedar Street) and received from Benjamin M. Richard and his wife their deed dated May 31, 1939, conveying this property to the Housing Commission. This deed was recorded on the same day and contained this provision: "The first parties reserve the right to remove and retain, from the property herein conveyed, all machinery, equipment, boilers, pipes, wiring and fixtures contained in the building on the property."

On June 1, 1939 the Housing Commission issued to the Construction Company the initial proceed order, effective as of June 12, 1939, authorizing it to proceed with the construction of the work included under its contract of May 24, 1939. The plaintiff went into the two properties involved in this action, for the purpose of demolition of these respective improvements, immediately after receiving the proceed order thereon, which dates of entry were September 18, 1939,...