Cox v. Curnutt

• Decision Date: 11 May 1954
• Docket Number: No. 35638,35638
• Citation: 1954 OK 150,271 P.2d 342
• Parties: COX et al. v. CURNUTT et al.
• Court: Oklahoma Supreme Court

Page 342

271 P.2d 342

1954 OK 150

COX et al. v. CURNUTT et al.

No. 35638.

Supreme Court of Oklahoma.

May 11, 1954.

Syllabus by the Court.

1. Where one engaged in the business of a general contractor, who by contract undertakes to perform work for another requiring the exercise of care, skill and knowledge, there is an implied warranty that the work which he undertakes shall be of proper workmanship and reasonable fitness for its intended use.

2. Record examined, and held, that the evidence supports the findings and judgment thereon that there was a breach of the implied warranty under the contract, and that the judgment as to the defendant, F. A. Cox, is not contrary to law.

3. Where the general contractor employs a subcontractor to construct a cement driveway which the general contractor is obligated to construct under his general contract with the owners; and where the evidence discloses there is no privity of contract between the owners and subcontractor, a judgment against the subcontractor cannot be sustained.

4. Under the conditions set forth in paragraph 3 above, the trial court committed reversible error in overruling defendant Smith's demurrer to plaintiffs' evidence.

Robinson, Shipp, Robertson & Barnes, Oklahoma City, Washington & Thompson, Oklahoma City, for plaintiffs in error.

George Miller, Jr., Jack E. Wilson, Oklahoma City, Charles E. Brace, Oklahoma City, for defendants in error.

O'NEAL, Justice.

This is an action wherein plaintiffs seek to recover damages for the alleged faulty construction of a concrete driveway upon plaintiffs' premises located in Oklahoma City, Oklahoma. C. C. Curnutt and Frances Curnutt, plaintiffs in the trial court, will be referred to as plaintiffs, and F. A. Cox and George H. Smith, defendants below, will here be referred to by their proper names.

In plaintiffs' Amended Petition they allege that on November 9, 1948, they entered into a written contract with F. A. Cox for certain repairs on plaintiffs' residence and for the construction of a concrete driveway upon the premises. Plaintiffs alleged that the contract obligated F. A. Cox to construct said concrete driveway and the floor of the garage not less than four inches in thickness; that F. A. Cox secured the services of the defendant, George H. Smith, in the construction of the cement work; that there was no written warranty as to said construction work contained in said contract, but an implied warranty as to fitness and good workmanship; that the concrete work was carelessly, negligently and improperly performed and that shortly after its completion cracks developed in the concrete driveway thus depreciating the value of plaintiff's property; that the necessary cost and expense of repairing and reconstructing said driveway will be the sum of $1,000, for which sum plaintiffs prayed judgment.

The defendant, F. A. Cox, by answer, admitted the execution of the written contract with plaintiffs and alleged that the defendant George H. Smith did the concrete work as an independent contractor, but denied that the concrete driveway was carelessly, negligently or improperly constructed, but, on the contrary, in full compliance with the contract. In the alternative, Cox pleaded that if the driveway was improperly constructed by the defendant, Smith, that he have judgment against defendant, Smith, for any sums recovered by plaintiffs.

The defendant George H. Smith filed an answer in the form of a general denial. A verdict was returned in favor of plaintiffs against both defendants Cox and Smith in the amount of $650, and from the judgment rendered each defendant appeals.

Plaintiffs do not contend that the defendant Cox breached the express provisions of the contract, but base their recovery upon the alleged breach of the implied warranty of fitness, and that the contractor was obligated to perform the job in a workmanlike manner.

Plaintiffs' testimony tends to establish that the concrete slab upon the driveway measured four and three-eights inches in thickness and that its compressive strength was 3,800 lbs. to the square inch; that 2,500 lb. compressive strength is the usual requirement made by cement contractors in the construction of similar driveways within the Oklahoma City area.

Two expert witnesses qualifying as testing engineers testified that in their opinion there was nothing wrong with the concrete as to its thickness and strength; that the cracks in the concrete driveway probably resulted from a lack of sufficient expansion joints or failure to use wire mesh...