Fonda Corp. v. Southern Sprinkler Co., Inc.
| Citation | 144 Ga.App. 287,241 S.E.2d 256 |
| Decision Date | 15 November 1977 |
| Docket Number | No. 3,No. 54547,54547,3 |
| Parties | The FONDA CORPORATION et al. v. SOUTHERN SPRINKLER COMPANY, INC |
| Court | United States Court of Appeals (Georgia) |
Ronald N. Winston, Richard H. Siegel, Atlanta, for appellants.
Westmoreland, Hall, McGee & Warner, Jack A. Wotton, Clifford Oxford, Atlanta, for appellee.
The appellants, the Fonda Corporation and its bonder, American Fidelity Fire Insurance Co., bring this appeal from the jury verdict and judgment rendered against them arising out of a contractual dispute between Fonda and its subcontractor, Southern Sprinkler Co., the appellee.
The facts giving rise to this dispute show that Fonda entered into a contract with the Georgia Retardation Center to make certain improvements upon buildings at that agency's location. Included in those improvements were plans for a "dry" fire sprinkler system. The owner of Southern approached Fonda and sought information upon which to make a bid for the sprinkler system. It was noted by Southern that the plans called for a "dry system" using a particular type of sprinkler head. The buildings involved apparently were two-story cottages which were inhabited at all times by retarded persons. Southern's owner, Alexander, climbed into the attic of one of these buildings and concluded that as an inhabited building with some heat filtering up from the area below the attic, there was no reasonable likelihood that the pipes to be installed would be subject to freezing. It was uncontested that in the space between the first and second floor, which was a heated area, the use of a "return bend," which apparently is a conventional-type drop, would not cause the system to be "wet," as opposed to "dry." We understand from the evidence that the sprinkler system installed by Southern was a "dry" system. It was tapped onto a water line which brought water to the building being protected. At the wall of the building, apparently there was a valve in the water pipe, kept closed by compressed air, which restrained the water from entering the sprinkler pipe system in the building. In the event of a fire, heat would melt the sprinkler head, allowing the air to escape and water to enter the interior pipes and thence through the sprinkler head onto the fire. A "drop" is an extension of pipe that connects a sprinkler head to the water distribution pipe system. The "drop" may accumulate moisture either from condensation or from testing the sprinkler system. The water in a conventional "drop" will not be discharged unless the head is loosened and the water drained or in the event of a fire, the sprinkler head is activated and the water discharged upon the fire. Because of the possible accumulation of water in a conventional drop, a second type drop is available, at a much greater cost, to prevent freezing. This sprinkler head has fabricated with it a drop that prevents any water from the main system entering the drop except in case of fire. Any condensation that may occur in the drop itself is allowed to drain off through a small hole in the sprinkler head.
In the contract in question, the plans and specifications called for a "sprinkler head" schedule and specified that all heads should be equal to "Vikings Model D-Flush Type." Advertising material available to Southern showed Vikings Model D-Flush Type heads consisted of either (1) sprinkler heads with conventional drops that could be used in both a wet or dry system, or (2) "Type D-2," a more expensive head with a prefabricated drop. It was uncontested that Type D-2 was designed for use in areas subject to freezing. The plans and specifications did not require Southern to use "Type D-2" heads, though it did call for a "dry" rather than a "wet" type head.
After examining the plans and specifications, Southern prepared shop drawings showing the manner in which it would install the system and indicated that it would use return bends or a conventional drop with a Viking Model D-Flush Type sprinkler head. Southern considered that as the conventional drop was being used in a dry system in the first floor which was not subject to freezing, it could use a conventional drop in the attic as well, to service the second floor and the attic, inasmuch as there was no probability of freezing. These drawings were submitted to a state insuring agency for approval, as required by the contract, as well as to the architect and the architect's consulting engineer. Each of these parties approved Southern's proposed work as reflected in the drawings. It appears that the state agency was aware that Southern intended to use conventional drops but that the architect and the consulting engineer failed to note the proposed use of the conventional drop.
Southern commenced the installation of the sprinkler system and had installed basically a dry system including conventional drops throughout one of the buildings. The consulting engineer on a progress inspection noted the use of the conventional drops and informed Southern that the work was not in accordance with the plans and specifications. It was the consulting engineer's understanding that the attic was subject to freezing and that Vikings Type D-2 heads were required in the attic area. Southern was of the opinion that the attic would not freeze and that the type head it was installing was in compliance with the contract. Inasmuch as the dispute could not be resolved because the change would have greatly increased Southern's cost of performance, Fonda terminated the contract with Southern and entered into a contract with a new party who was prepared to use the Type D-2 head.
Southern brought the present suit to recover the $25,911 it had expended in installing so much of the sprinkler system as it had completed prior to being terminated by Fonda. Fonda counterclaimed for the amount of the difference in its construction costs between the Southern contract and the new contract. The jury found for Southern in the amount of $25,911 plus $5000 in lost profits. Fonda enumerates as error the refusal of the trial court to grant its motion for a directed verdict on its counterclaim and the entry of judgment on the jury verdict in favor of Southern. Held :
1. As we view the facts and ultimate issues in this case, it appears to us that Fonda from the beginning intended for Southern to use Type D-2 "dry" heads. It also reasonably appears that the owner, Georgia Retardation Center expected to use "dry" heads together with a dry system because the Center had experienced some freezing, at least in copper pipes, in the attic during the hard freezes of the winter of 1976-77. We also conclude that the contract did not specifically call for the use of Type D-2 heads, but stated that the installer was to use the equivalent of Vikings Model D-Flush Type. We find from the evidence that the working drawings submitted to the architect and his consulting engineer were sufficiently clear to place them on notice that Southern intended to use conventional drops in the attic as well as between the floors, and that Southern intended to install heads other than the D-2 types. However, the architect and consulting engineer were unaware of Southern's intention to install heads other than the D-2 type.
It seems quite clear on the other hand that Southern, from the very first, considered...
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