Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Cavanaugh

• Citation: 32 Cal.Rptr. 144,217 Cal.App.2d 492
• Decision Date: 24 June 1963
• Docket Number: LATTER-DAY
• Court: California Court of Appeals Court of Appeals
• Parties: The CORPORATION OF the PRESIDING BISHOP OF the CHURCH OF JESUS CHRIST OFSAINTS, a Utah corporation sole, Plaintiff, Cross-Defendant and Respondent, v. D. C. CAVANAUGH, Defendant, Cross-Complainant, Appellant and Respondent, and Plastic Process Company, Defendant, Cross-Defendant and Appellant. Civ. 25485.

Page 144

32 Cal.Rptr. 144

217 Cal.App.2d 492

The CORPORATION OF the PRESIDING BISHOP OF the CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole, Plaintiff, Cross-Defendant and Respondent, v. D. C. CAVANAUGH, Defendant, Cross-Complainant, Appellant and Respondent, and Plastic Process Company, Defendant, Cross-Defendant and Appellant.

Civ. 25485.

District Court of Appeal, Second District, Division 3, California.

June 24, 1963.

Rehearing Denied July 17, 1963.

Hearing Denied Aug. 20, 1963.

Francis H. O'Neill, Los Angeles, for appellant and respondent cavanaugh.

Moss, Lyon & Dunn and Henry F. Walker, Los Angeles, for appellant Plastic Process Co. Pray, Price & Williams and William C. Price, Long Beach, for respondent Corporation of Presiding Bishop, etc.

FORD, Justice.

The defendants Cavanaugh and Plastic Process Company have appealed from a judgment ¹ in an action arising out of the failure of a radiant heating system which was installed in the plaintiff's church, to function properly. Cavanaugh was the contractor who made the installation. The plastic tubing or pipe which proved to be inefficient for the particular use was manufactured by Plastic Process Company.

The findings of fact of the trial court were in part as follows: 1. On July 9, 1953, the plaintiff and Cavanaugh entered into a written contract for the installation of a radiant heating system 'per plans and specifications by William Craig.' It was provided therein that Cavanaugh 'shall guarantee all materials and workmanship for a period of one year from completion date.' 2. The plaintiff performed all of the terms of the contract except the payment of the sum of $1,319.44. 3. Cavanaugh installed the heating system 'in good and workmanlike manner and in accordance with the plans and specifications except that it did not and could not be made to pass the pressure tests provided for in the specifications and the system did not and could not be made to maintain any steady pressure for any appreciable length of time and it did not and could not be made to heat the building. That the reason that the system would not pass the pressure test or hold any pressure or heat the building was because the materials used and which had been purchased by the defendant Cavanaugh from the defendant Plastic Process were unsuited for radiant heating when embodied in concrete. The materials, therefore, were defective.' 4. The reasonable and actual cost to the plaintiff for the replacement of the defective plastic pipe with copper tubing and for rebuilding the floor was $15,100. If copper tubing had been used initially, the cost would have been $800 more than the amount set forth in the plaintiff's contract with Cavanaugh and, 'therefore, plaintiff was damaged by reason of the defective material in the amount of $14,300.00.' 5. Cavanaugh represented and warranted to the plaintiff that 'the materials to be used in said heating system were capable of and would perform the same functions and with the same efficiency as copper tubing and that they were in all respects sound, adequate and free from defects.' 6. The plaintiff was 'ignorant of the falsity of such representations and warranties and was unable and did not have access to the truth concerning them and relied on such representations and warranties in permitting the use of plastic tubing in lieu and in place of copper tubing.' 7. The plaintiff 'did not discover or have any knowledge of the defective condition of said tubing and of the fact that it was inadequate until on or about April 20, 1956.' 8. The defendant Plastic Process Company supplied the tubing described as Plastipipe No. 110 which was used by Cavanaugh in installing the heating system. 9. Prior to the execution of the contract between the plaintiff and Cavanaugh and prior to the time when the tubing was sold by Plastic Process Company to Cavanaugh and installed in the plaintiff's building, Plastic Process Company represented to the plaintiff and its agents and to Cavanaugh that the plastic tubing manufactured and supplied by Plastic Process Company could be used in lieu of and in place of copper tubing in a radiant heating system embedded in concrete and would be suitable for the purpose and free from de fects. Plastic Process and free from defects. Plastic Process the plastic tubing would be satisfactory and adequate in every respect for the purpose for which it was intended to be used, namely as tubing embedded in concrete in a radiant heating system.' The plaintiff relied upon those representations and was unable to investigate the truth or falsity thereof. 10. In reliance upon the representations and warranties, 'the plaintiff through its architect and duly authorized agents, specified plastic tubing and other materials manufactured by' Plastic Process Company and had Cavanaugh 'install same in the church as part of the heating system.' 11. The warranties and representations made by Plastic Process Company 'were made to the public generally and to the trade including architects, engineers and heating contractors with the hope, expectation and intention that members of the trade would specify their use and would relay the warranties and representations made by said defendant to the ultimate consumer such as plaintiff. That in reliance upon these representations and warranties, plaintiff through its architect Thomas and through the engineer Craig employed by its architect who designed and engineered the heating system, relied upon said warranties and representations and did so design the heating system as to call for the use of the products of defendant Plastic Process Co.' Those warranties 'were made in printed advertising material put out to the trade and the public generally and to the persons in the position of plaintiff.' 12. By reason of the specification by the plaintiff 'through its architect and engineer, through its heating contractor, D. C. Cavanaugh, plaintiff purchased from defendant Plastic Process Co., the materials which were used in the heating system.' 13. The plastic tubing 'was defective and unsatisfactory for the purpose for which it was used and for which it had been sold and did not perform as represented and warranted by defendants, in that among other things, it tended to split or crack by reason of shrinkage when embedded in concrete especially at bends and at points where its fittings would not permit it to move with the concrete'; it was, therefore, 'unsatisfactory and unsuitable for the purpose for which it was sold.' 14. These defects 'were latent and unknown to plaintiff and plaintiff had no way of knowing of them and of the unsuitable and unsatisfactory condition of said plastic tubing when embedded in concrete until on or about April 20, 1956 when it learned that the plastic tubing was not suitable, but that it was not until much later that plaintiff learned the reason for its unsuitability.' 15. '[I]mmediately upon discovery of said defect, plaintiff gave timely notice to defendants.'

Judgment was rendered in favor of the plaintiff against Cavanaugh for the sum of $12,980.56 and against Plastic Process Company for $14,300.

With respect to the cross-complaint filed by Cavanaugh against Plastic Process Company, the findings of fact were in part as follows: 1. In the contract between Cavanaugh and the plaintiff church, it was provided that the installation of the radiant heating system was to be in accordance with plans and specifications prepared for the plaintiff church by its architect. Those plans and specifications 'provided and required that the radiant heating panels so installed be of 1/2 inch '$110 Plastipipe,' a trade named article manufactured exclusively by Cross-Defendant Plastic Process Company.' 2. By the terms of that contract Cavanaugh 'agreed and guaranteed that the materials used be of standard grade unless otherwise specified, and that the said materials used would be those specifically required by the specifications of the church.' 3. Cavanaugh made the installation 'in a good and workmanlike manner.' The 'material furnished and installed was of standard grade, free from visible defects and in accordance with the specifications.' 4. 'That from or on [sic] June 1, 1953, at various meetings attended by the Cross-Complainant [Cavanaugh] and one William G. Craig, a Mechanical Engineer, Harold Kotkin, Vice-President of Cross-Defendant Plastic Process Company did represent that extensive tests had been made on plastic tubing, and specifically '$110 Plastipipe' and that the said product had been found satisfactory and would perform as well as, if not better than, copper tubing, when installed in a radiant heating system embedded in concrete and that it would not deteriorate and would withstand pressure to the same extent as copper tubing * * * and that as a result of the said extensive tests made on the use of said product for said purpose his company could and would unconditionally warrant and guarantee that the said plastic tubing would perform as satisfactorily in radiant heating system[s] as if copper tubing had been installed therein and would last as long.' 5. William G. Craig, a mechanical engineer, was employed by the plaintiff church 'to prepare the plans and specifications for a radiant heating system * * * and did therein provide as a direct result of the said statements and representations of the said Harold Kotkin, that the radiant heating panels be installed with use of '$110 Plastipipe' * * * and the said William G. Craig did in so providing, expressly rely upon the representations and statements made by the said Harold Kotkin aforesaid.' 6. Cavanaugh did, at the request of the plaintiff church, 'render his bid to install the said radiant heating system in accordance with the specifications including installation of '$110 Plastipipe." Cavanaugh relied upon the representations made to him by Plastic Process Company's agent. 7. Prior to the execution of the...