Garden City Floral Co. v. Hunt

• Decision Date: 26 March 1953
• Docket Number: No. 9136,9136
• Citation: 126 Mont. 537,255 P.2d 352
• Parties: GARDEN CITY FLORAL CO., Inc. v. HUNT et al.
• Court: Montana Supreme Court

Page 352

255 P.2d 352

126 Mont. 537

GARDEN CITY FLORAL CO., Inc. v. HUNT et al.

No. 9136.

Supreme Court of Montana.

Submitted Jan. 7, 1953.

Decided March 26, 1953.

Ralph J. Anderson, Helena, argued orally, for appellants.

Smith, Boone & Rimel, Missoula, for respondent.

Russell E. Smith, Missoula, argued orally.

ANGSTMAN, Justice.

Defendants have appealed from a judgment rendered against them on a verdict in favor of plaintiff in the sum of $18,655.

Plaintiff owns two tracts of land in the city of Missoula. On the easterly tract, prior to September 1950, there was a building known as the Bedard building. On August 25, 1950, plaintiff entered into a written agreement with defendant Hunt by the terms of which Hunt agreed to erect a building on the westerly tract using the west wall of the Bedard building as the east wall of the new building. The contract expressly recited that the specifications and drawings were a part of the contract as if attached thereto or repeated therein. According to the drawings or specifications the new building was to have a 12- foot basement and the west wall of the Bedard building was to be underpinned with concrete in four-foot blocks along its entire length. Defendant Hunt was required to and did furnish a performance bond executed by defendant Continental Casualty Company as surety.

Shortly after the making of the contract defendant Hunt commenced the excavation for the new building, using a bull dozer for that purpose. As a result of the excavation the west wall of the Bedard building collapsed and fell into the excavation. Plaintiff, believing that the Bedard building could not be repaired, caused it to be torn down. This action seeks recovery for damages suffered by plaintiff as the result of the loss of the Bedard building and for indemnity to plaintiff for damages which it may be required to pay to tenants of the Bedard building because of damages sustained by the tenants.

The complaint consists of two causes of action. In the first cause of action it is alleged that defendant Hunt did not use a reasonable or any degree of skill in making the excavation in that he dug a trench along the entire west wall of the Bedard building, deeper than the bottom of the foundation of the Bedard building, and so close to it that the earth and dirt under the foundation slid into the trench; that because thereof the west wall was deprived of lateral support as well as support of the ground upon which it had previously rested and that it therefore fell of its own weight.

The second cause of action alleges that the drawings for the building called for underpinning of the wall of the Bedard building in four-foot blocks along its entire length; that in the contracting business this meant that the excavation should be done in alternate four-foot strips so that each excavated section has a four-foot strip of earth on each side of it; that when a four-foot section is excavated, concrete is poured and allowed to set and that after one section of concrete is poured another excavation of a four-foot strip is made and poured and thus the wall is never deprived of support along its whole length. It is alleged that defendant Hunt breached this part of his contract and dug the trench along the entire length of the wall and dug it deeper than the bottom of the foundation under the Bedard wall and so close to it that the earth under the foundation slid into the trench and the wall was deprived of support causing it to fall of its own weight; that had defendant Hunt used the method of underpinning set out in the drawings the excavation would have been made without damage to the wall.

One question presented by the appeal is whether plaintiff may maintain this action against defendants for such damages where it predicates liability because of the unskillful and neglectful manner in which defendant Hunt performed the excavating resulting in the collapse of the Bedard building.

Defendants take the view that if there be liability for such damages, it must sound in tort and not for breach of contract. Defendant Casualty Company contends that it is not liable for the damages complained of because such damages were not intended to be within the coverage of the bond. Another contention is that plaintiff failed to provide a duly qualified architect, with full supervisory authority and hence that plaintiff did not comply with its part of the contract and that such failure on the part of plaintiff operated to release the Casualty Company.

The bond contains this provision: 'Now, therefore, if the Principal shall faithfully perform such contract * * * and shall indemnify and save harmless the Owner from all costs and damages by reason of the Principal's default or failure so to do, then this obligation shall be null and void; otherwise it shall remain in full force and effect.'

The Casualty Company contends that the terms of the bond do not cover costs and damages arising from the manner in which Hunt performed the terms of his contract. It relies upon National Surety Co. of New York v. Ulmen, 9 Cir., 68 F.2d 330. In that case it was a third party and not a party to the contract of suretyship who brought the action. What was said in that case must be confined to the facts then before the court.

Here the surety contracted that Hunt would faithfully perform his contract and indemnify and save plaintiff harmless from all costs and damages by reason of his default or failure so to do.

A contract of employment carries with it the obligation to do the work in a reasonably skillful manner. Williston on Contracts, Rev.Ed., Vol. 4, Sec. 1014, p. 2792; 38 Am.Jur., Negligence, Sec. 20, p. 662. This is also the effect of our statutes, R.C.M. 1947, Secs. 41-208 and 41-209. And see Schwab v. Peterson, 80 Mont. 214, 260 P. 711.

In the note in 12 L.R.A.,N.S., 924, the rule is stated as follows: 'Whenever a negligent breach of a contract is also a violation of a common-law duty, an action ex delicto will lie. Accompanying every contract, is a common-law duty to perform the thing agreed to be done with care, skill, reasonable expediency, and faithfulness, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract.' To the same general effect are: Roscoe Moss Co. v. Jenkins, 55 Cal.App.2d 369, 130 P.2d 477; Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Co., 10 Cir., 49 F.2d 146.

Counsel for the Casualty Company stresses the statement made by plaintiff's witness, John E. Hightower, to the effect that every contractor has his own method of doing his work. In addition to that statement Mr. Hightower also testified in substance that in underpinning a wall with concrete piers you would not excavate the whole length of the wall but only in three or four-foot sections leaving soil between each pier; that there would never be more than three or four feet of foundation exposed at any given time; that is what the drawing means when it specifies that the underpinning shall be in four-foot blocks.

There is ample evidence in the record to warrant a finding that defendant Hunt did not perform his contract in that he failed to comply with the drawings requiring underpinning in four-foot blocks and that therefore there was a breach of his contractual obligation. The only reason for requiring underpinning in four-foot blocks was to safeguard the west wall of the Bedard building.

The record shows that in doing the underpinning in the manner required there would never be more than four or five feet of the foundation wall without support; that in making the excavation the digging should not be so close to the wall as to deprive the foundation of its support; that the digging may proceed below the foundation wall if dirt is allowed to remain between the trench and the wall to give support to the wall.

It was contemplated in the contract that defendant Hunt should excavate for the basement of the new building. It was likewise contemplated by the parties to the contract that injury to the west wall of the Bedard building might result unless it was properly underpinned; likewise it was reasonably within the contemplation of all parties to the contract that if the west wall of the Bedard building were permitted to collapse it would most certainly cause damages to the entire building supported by the west wall.

It was these considerations that led to the requirement that the wall be underpinned in four-foot blocks. The parties were contracting against possible damage to the west wall and to the building which it supported. Failure to comply with that contract rendered defendant Hunt liable in an action for breach of contract. The case is very similar to that of Samuel v. Novak, 99 Md. 558, 58 A. 19, which involved the question of underpinning a wall. In that case the action was in tort for damages due to alleged negligence in excavating below the foundation walls of adjoining property causing the property to collapse and fall in. The court held it was proper to instruct the jury that if the damage sustained by plaintiff was occasioned by defendant's failure to perform a contract entered into between plaintiff and defendant for the protection of plaintiff's property, then they must find for defendant. The test therefore is whether plaintiff is relying on tort or proceeding on the theory that Hunt failed to faithfully perform his contract.

Likewise Hunt's failure to perform the work with reasonable skill constituted a breach of his contract. The authorities recognize that there may be liability in certain cases both in tort and for breach of contract. See 1 Am.Jur., Actions, Sec. 51, p. 443.

The statement of the rule made in the note in 12 L.R.A.,N.S., p. 926, is as follows: 'Based upon the principle above indicated, the firmly established rule is that, for injuries resulting from the unskilful, or otherwise negligent, performance of a thing agreed to be done, an action ex delicto...