Fuchs v. Parsons Const. Co.

• Decision Date: 07 March 1958
• Docket Number: No. 34319,34319
• Citation: 88 N.W.2d 648,166 Neb. 188
• Parties: Bert L. FUCHS and Pearl J. Fuchs, Appellants and Cross-Appellees, v. PARSONS CONSTRUCTION COMPANY, a corporation, and Steele, Sandham & Steele, a co-partnership, consisting of J. Dow Sandham and William L. Steele, Jr., Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

Page 648

88 N.W.2d 648

166 Neb. 188

Bert L. FUCHS and Pearl J. Fuchs, Appellants and Cross-Appellees, v. PARSONS CONSTRUCTION COMPANY, a corporation, and Steele, Sandham & Steele, a co-partnership, consisting of J. Dow Sandham and William L. Steele, Jr., Appellees and Cross-Appellants.

No. 34319.

Supreme Court of Nebraska.

March 7, 1958.

Syllabus by the Court

1. The substantial distinctions between actions on contract and those in tort exist notwithstanding the adoption of the code.

2. If a petition states a cause of action for breach of contract, additional averments appropriate to a cause of action for a wrong will not convert the cause of action into one for tort and the part of the pleading appropriate to an action in tort will be considered surplusage.

3. If the averments make it doubtful whether the action is on contract or in tort, the doubt will be resolved in favor of an action on contract.

4. The determination of whether an action is on contract or in tort requires knowledge of the source or origin of the duty, the nature of the grievance, and what is said concerning them in the pleading in the cause.

5. If an action is not maintainable without pleading and establishing the contract or if the essence of the action is breach of contract, whether by acts of omission or commission, it is in substance, whatever may be the form of the pleading, an action on contract.

6. If the contract of a contractor is that he will perform a designated undertaking as detailed and required by prescribed plans and specifications, the contractor may not vary from them in completing the work even if he deems them improper or insufficient.

7. In such an instance the contractor does not guarantee that the work performed as required by the plans and specifications will be free from defects or that it will accomplish the purpose intended.

8. If the contract specifies what a contractor is to do and the manner and method of doing it and he does the work as the contract requires, his engagement is performed and satisfied.

9. Causes of action involving different defendants cannot be joined unless each cause of action affects all the defendants and they have a joint or common liability or interest.

Crawford, Garvey, Comstock & Nye, Omaha, for appellants.

King, Haggart & Kennedy, Crossman, Barton & Quinlan, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE and BOSLAUGH, JJ.

BOSLAUGH, Justice.

The recovery appellants seek herein is damages from appellees because of the alleged negligent construction of a building on premises owned by appellants by the Parsons Construction Company, hereafter referred to as the contractor, and on account of the alleged negligent, insufficient, and improper supervision of Steele, Sandham & Steele, called herein the architects, of the construction of the building. The legal sufficiency of the second amended petition of appellants, hereafter designated the petition, was contested by special and general demurrer of each of the appellees. The grounds thereof were identical. They were that there was a defect of parties defendant, that several causes of action were improperly joined, and that the petition did not state facts sufficient to constitute a cause of action. The demurrers were, without specification of the reason therefor, sustained by the trial court and a judgment of dismissal of the case was rendered. The issue of this appeal is the correctness of the action of the trial court in its disposition of the case.

The substance of the parts of the petition relevant to this inquiry is:

Plans and specifications for the construction of a building on the described real estate owned by appellants were prepared at their instance and request by the architects, specifying in detail and with particularity the manner in which the building should be constructed including specific instructions as to the excavating, backfilling, and piling that were required. Instructions to bidders were attached to the plans and specifications. The proposal as exhibited by the plans and specifications was accepted by appellants. These were submitted to contractors and bids for construction of the proposed building were invited. A bid was made by the contractor for the construction of the building according to the plans and specifications prepared by the architects and approved by appellants and the bid of the contractor was accepted as made by it. A contract was made with the contractor in accordance with the bid and the contractor engaged in the actual construction of the building as provided by the plans and specifications therefor. The architects were employed by the owners to supervise the construction of the building in compliance with the plans and specifications and they acted in that capacity and status.

The specifications were made for Fuchs Machinery & Supply Co. Building. The parties to the construction contract were the contractor, Andrew Murphy & Son, Inc., a corporation, and Fuchs and Crawford, a partnership. Fuchs Machinery & Supply Co., a partnership, Andrew Murphy & Sons, Inc., a corporation, and Fuches & Crawford, a partnership, each assigned their interest and rights to appellants.

The contractor and the architects were charged in separate paragraphs of the petition with many negligent acts of omission and commission. The specific acts of negligence alleged in each paragraph are identical except where it is said that the contractor was negligent in failing to do a specified thing, the corresponding act charged against the architects is in their failing to require the contractor to do the identical thing; and where it is said the contractor was guilty of an act of commission, the corresponding act of negligence charged against the architects is that they permitted the contractor to do the identical thing.

The matters to be considered and decided on this appeal do not require that the very numerous allegations of negligence be summarized or detailed herein. It is sufficient that they are all concerned with the subject matter covered in detail by the contract providing for the construction of the building in accordance with the plans and specifications aforesaid. Appellants seek a joint and several judgment against the contractor and architects for the alleged damages resulting from the asserted negligence of appellees.

It is important to determine the character of the cause of action asserted against the contractor. The appellants say it is in tort and the contractor thinks it is on contract. Notwithstanding the adoption of the code, the substantial distinctions between actions on contract and those in tort exist. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676; First Nat. Bank of Wayne v. Gross Real Estate Co., 162 Neb. 343, 75 N.W.2d 704. If the petition contains a cause of action for breach of contract, additional averments appropriate to a cause of action for a wrong will not change the action from contract to tort and if there is a doubt as to the character of the action it will be resolved in favor of an action on contract. In such an instance the statements appropriate to an action in tort will be considered surplusage. Douglass v. Loftus, 85 Kan. 720, 119 P. 74, L.R.A.1915B, 797, Ann.Cas.1913A, 378; Dixon v. Texas Co., 222 S.C. 385, 72 S.E.2d 897; Southern Pacific R. Co. of Mexico v. Gonzalez, 48 Ariz. 260, 61 P.2d 377, 106 A.L.R. 1012; Andersen v. Thude, 42 Ariz. 271, 25 P.2d 272; Delaney v. Great Bend Implement Co., 79 Kan. 126, 98 P. 781. In order to decide the form of the redress, whether contract or tort, it is necessary to know the source or origin of the duty or the nature of the grievance. Attention must be given to the cause of the complaint; in other words, the character of the action must be determined from what is asserted concerning it in the petition in the cause. It is not important what the plaintiff calls his action. If he does attempt to identify it and is mistaken, that is immaterial. This is the rationale of the code provision that a petition is a statement of facts constituting a cause of action in ordinary and concise language. Driekosen v. Black, Sivalls & Bryson, Inc., 158 Neb. 531, 64 N.W.2d 88; Nathan v. Locke, 108 Cal.App. 158, 287 P. 550, 291 P. 286; Schneider v. Ft. Dearborn Casualty Underwriters, 258 Ill.App. 58; Douglass v. Loftus, supra; Van Oss v. Synon, 85 Wis. 661, 56 N.W. 190.

The sole source or origin of the duty of the contractor was the construction contract. The nature of the grievance charged against the contractor was that it obligated itself by written contract to erect a building for appellants as required by the plans and specifications under the direction and supervision of the architects acting for appellants and that it failed by omission and commission to construct the building in that manner. This is definitely and precisely demonstrated by the language of the petition: '* * * that plans and specifications for the construction of a building * * * were, at plaintiffs' special instance and request, prepared for the plaintiffs by the defendant Steele, Sandham & Steele, specifying specifically the manner in which the building * * * was to be constructed, both generally and specifically, and including specific instructions in regard to the excavating, backfilling and piling; * * * that the defendant Parsons Construction Company did submit a bid, which said bid was accepted for the completion of said building * * * according to the plans and specifications above referred to * * * and the defendant Parsons Construction Company undertook the construction of said building under said plans and specifications.'

The pleading of appellants lacks allegations of other or different duty assumed by or imposed upon the contractor. The injuries for which appellants seek redress were the rights which accrued to them, according to the pleading, exclusively as the result of the construction...