General Fireproofing Co. v. L. Wallace & Son
Citation | 175 F. 650 |
Decision Date | 05 January 1910 |
Docket Number | 3,006-3,008. |
Parties | GENERAL FIREPROOFING CO. v. L. WALLACE & SON. TITLE GUARANTY & SURETY CO. OF SCRANTON, PA., v. SAME. L. WALLACE & SON v. GENERAL FIREPROOFING CO. et al. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
A. H Sargent and Frank Hagerman (F. H. Atwood, on the briefs), for General Fireproofing Co. and Title Guaranty & Surety Co.
John N Hughes and Frank F. Dawley, for L. Wallace & Son.
Before SANBORN and VAN DEVANTER, Circuit Judges, and POLLOCK District judge.
The above numbered and entitled cases arose out of one transaction, were argued and submitted on the same record and will be considered together as one case. The facts necessary to a decision may be briefly summarized, as follows:
In the year 1904 the Cedar Rapids Hotel Company, desiring to erect in the city of Cedar Rapids, Iowa, a six-story hotel, now built and occupied by it and known as the 'Montrose Hotel,' entered into a contract with L. Wallace & Son, a firm of contractors and builders (hereinafter called 'original contractor'), to furnish all materials and perform all labor required in building, erecting and finishing said hotel building complete, above the basement story, ready for occupancy and use by the hotel company as a hotel.
This contract is the general form used by the American Institute of Architects and the National Association of Builders, and has attached thereto particular specifications and requirements for the doing of the work, furnishing the materials, for supervision of the work by the architects, the making of estimates and payments thereon, etc. On September 21, 1904, thereafter, the original contractor entered into a subcontract with the General Fireproofing Company (hereinafter called the 'Fireproofing Company') to furnish all materials and perform all labor in connection with the work of fireproofing the hotel according to the expanded metal system of construction, the laying of walks, floors, roof, etc. In this contract the original contractor was designated for convenience as owner and the Fireproofing Company as contractor. This contract contains, among others, the following provisions:
In compliance with the specifications for the doing of the work which were prepared by the architects Josselyn & Taylor Company, and which became a part of this contract by adoption under the provisions of article I, the Fireproofing Company procured the Title Guaranty & Trust Company of Scranton, Pa. (hereinafter called the 'Guaranty Company'), to execute and deliver its bond to the original contractor for the faithful performance of its obligations, in terms, as follows, to wit:
Under the provisions of these contracts the construction of the building was begun and proceeded with by the contracting parties in convenient relation, the original contractor carrying up the the brick walls, and the Fireproofing Company following with the laying of the concrete floors and other fireproofing work until the month of March, 1905, at a time when the fourth floor of the building had been laid and work was progressing on the fifth story when cracks were discovered in the outer walls of the building. These cracks first appeared on the Third street side of the building; later, on the Third avenue side. In some instances they were in perpendicular lines breaking through the bricks; in other cases in diagonal lines running through the joints between the bricks and between the brick and stone work of the building.
At first these breaks or lines of cleavage were noticeable on the outer side of the wall only, but gradually enlarged until they extended through the walls to the interior side. The concrete used by the Fireproofing Company in the building was what is known as cinder concrete. During the construction of the building, cold weather having intervened, two of the floors froze in setting, and the Fireproofing Company was compelled to and did take them out and relay the floors. There also arose a controversy between the original contractor and the Fireproofing Company as to whose duty it was, under the terms of the contract, to furnish the false jambs used in the construction of the interior metal fireproofing partitions. These jambs were ultimately furnished by the original contractor at a cost of $800. The roof...
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