Davies v. Kahn
| Decision Date | 06 January 1958 |
| Docket Number | No. 7523.,7523. |
| Parties | Dan H. DAVIES, trading as Davies Reversible Window Products, Appellant, v. M. B. KAHN, Irwin Kahn, Saul Kahn, and Bernard Kahn, partners d/b/a M. B. Kahn Construction Company, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
J. Monroe Fulmer, Columbia, S. C. (Fulmer & Barnes, Columbia, S. C., on brief), for appellees.
Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.
Suit was brought by a Chicago subcontractor against the general contractor, a South Carolina construction corporation, which was building the Teaching Hospital for the Medical College of South Carolina, in Charleston.
The defendant gave the plaintiff an order on June 13, 1952, for "reversible sash fixtures," a type of window designed to allow the sash to be pivoted horizontally so that both sides of the window can be cleaned from the inside. On May 28, 1953, a letter was sent by Kahn, the defendant-general contractor, to Davies, the subcontractor, cancelling the order on the ground that the architect considered Davies' product not equal to that specified; and later, on August 14, 1953, it notified Davies of the cancellation, this time on the asserted ground that the architect had not approved the plaintiff as a subcontractor.
The District Judge, before whom the case was tried without a jury, accepted the defendant's contention that the reference in the order to the "plans and specifications" of the general contract incorporated into the order certain provisions as to approval by the architect. The Judge further concluded that these requirements had not been observed and gave judgment for the defendant. The appeal challenges this action.
It becomes necessary to examine the plans and specifications of the general contract, and to determine what bearing they may have on the order given the subcontractor. We have occasion also to review and consider the legal effect of the conduct of the parties in the interval between the placing of the order and its cancellation.
The defendant's purchase order form calls upon the plaintiff to "furnish the following, according to plans and specifications . . . reversible sash fixtures as per plans and specifications . . . $14,600.00." The threshold question is the meaning of this language. It is the plaintiff's position that the reference to plans and specifications was merely to determine measurements and quantities, and that the order is an unconditional contract. The defendant, on the other hand, maintains that the plans and specifications, including all their procedural requirements, form a part of the order.
In the final cancellation notice, it was the defendant's theory that the order was not a firm contract, but conditional, and that since the subcontractor was not approved by the architect, no obligation whatever rested upon the defendant.
Assuming that the specifications are by reference fully incorporated into and made a part of the order, nowhere do we find in them support for the defendant's claim that the subcontractor needed the architect's approval. Such provisions are not unknown in building contracts, but they cannot be implied as a matter of law. Building contracts and accompanying specifications, like other documents, are to be construed according to their terms. 9 Am.Jur., "Building and Construction Contracts," Sec. 7, p. 8; Werbin, Legal Phases of Construction Contracts (1946), p. 222. The agreement of the parties is not to be extended beyond its terms, nor is omitted matter to be supplied, unless necessary to give effective meaning to the language used. We hold, in respect to the specific ground recited in the August letter of cancellation, that there was no requirement that the subcontractor be approved by the architect.
The defendant also makes the slightly variant contention that the plaintiff's window sash itself required the architect's approval, and that as no such approval was given, there has been no compliance with a condition of the contract, notwithstanding that the specifications have been strictly adhered to in regard to labor, material, size, quality, etc. We do not read the specifications so broadly. It is true that the specifications require the architect's approval where equivalents are offered by the contractor in substitution for materials that have been specified by brand name.1 This window sash, however, was not specified by brand name. The specifications contain a description of what was to be supplied, and it is not disputed that the plaintiff's sash met the description.
That the sash were intended to be ordered by description, and not by brand, appears from the fact that the article is minutely described. Seemingly only as an afterthought is it added that such materials "may be procured from the Williams Pivot Sash Company, of Cleveland, Ohio." This impression is strengthened by the fact that elsewhere the specifications say, "The wood double-hung windows shall be a reversible type of sash similar to the product of the Williams Pivot Sash Company." (Our emphasis.) This language is not the same as specifying the Williams product, nor does it mean that what the subcontractor tenders must be approved by the architect as the equivalent of the Williams sash. Such approval would be required only if the Williams product "or approved equal" had been specified. In that case, the substitute would have to be approved. See Murphy v. Salt Lake City, 1925, 65 Utah 295, 236 P. 680. Here the goods of the plaintiff are not offered as a substitute for a specified brand, but as compliance with the detailed description. Cf. Fletcher v. Interstate Chemical Company, 1921, 95 N.J.L. 543, 112 A. 887, 17 A.L.R. 92; Greenbaum v. DeJong, Sup.1917, 166 N.Y.S. 1042. If the article in fact accords with the description, this constitutes performance.
If a broader discretion was desired to be given the architect, apt language could have been used to accomplish the purpose. Merely indicating that merchandise of the kind ordered can be obtained from a certain source is not a restriction to that source, nor does it clothe the architect with authority to insist on the merchandise which has been mentioned merely by way of example. In fact, the very specifications before us contain a number of instances in which goods are ordered by brand name2 and, in respect to such goods, the architect is given the authority to determine whether a proposed substitute is satisfactory. The specifications' different treatment of other items, including the sash, argues against the defendant's interpretation. Note, Tobin Quarries v. Central Nebraska Public P. & I. Dist., D.C.Neb.1946, 64 F.Supp. 200.
Should we, however, make the further assumption that the applicable specifications subject the plaintiff's goods to the architect's approval, we find from the course of conduct of the parties in this case that such approval was in fact given.
The architect was the firm of Hopkins, Baker, and Gill, of Florence, South Carolina, with Mr. Baker in charge; but as he had had little experience in supervising the construction of hospitals, another firm, Samuel Hannaford and Sons, of Cincinnati, Ohio, was associated as consultant. Mr. Hannaford and his staff participated in the preparation of specifications for the hospital job. It was at the instance of the Hannaford firm that reversible window sash were incorporated in the plans and specifications. Mr. Baker testified that he had had no practical experience with this item and that he could not distinguish between the plaintiff's product and that of the Williams Company. He declared on the witness stand that he was being advised by Mr. Hannaford. He further testified that when specifications mention a product by name, this is simply intended to be a standard, and that when an architect says he has no objection to using another product, he means that he regards it as equal to the named product. This statement is significant in the light of other evidence to be discussed later, that Mr. Hannaford, to whom the plaintiff had been referred by Baker, stated to Davies, and wrote to Baker, that he had no objection to the plaintiff's product.
Before the general contract was awarded, the plaintiff contacted the defendant and furnished it with data that was used in...
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