George a Fuller Co. v. B. P. Young Co.

• Decision Date: 14 December 1903
• Docket Number: 49.
• Citation: 126 F. 343
• Parties: GEORGE A. FULLER CO. v. B. P. YOUNG CO.
• Court: U.S. Court of Appeals — Third Circuit

126 F. 343

GEORGE A. FULLER CO. v. B. P. YOUNG CO.

No. 49.

United States Court of Appeals, Third Circuit.

December 14, 1903

J. H Beal, for plaintiff in error.

R. B Ivory, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and McPHERSON, District Judge.

J. B McPHERSON, District Judge.

In January, 1901, Henry C. Frick, of Pittsburg, the owner desiring to erect a large and handsome office building, to be 19 stories high, made a contract with the George A. Fuller Company, which provided, inter alia, that the contractor should call for bids from subcontractors for the various divisions of the work, but should accept such bids only as the owner should approve. The call was duly made, and in reply thereto the B. P. Young Company offered to furnish and set in place the marble and tile work, according to the plans and specifications of D. H. Burnham & Co., the architects in charge of the enterprise, for the sum of $325,000. The offer was accepted, and a subcontract was executed in February between the Fuller Company and the Young Company, under which the present dispute arises. The relevant provisions of the agreement are to be found in the following paragraphs:

'Art. 1. The subcontractor, under the direction and to the satisfaction of D. H. Burnham & Co., architects, shall and will provide all the materials and perform all the work mentioned in the specifications and shown on the drawings prepared by the said architects for the entire furnishing and erecting of all marble work, marble and mosaic tile floors, all encaustic tile, concreting under floors, etc., necessary to complete the nineteen stories, basement, subbasement and club story office building, situate on Grant Street, between Fifth avenue and Diamond street, in the City of Pittsburgh, Pennsylvania, for Mr. H. C. Frick, in accordance with the general conditions, drawings, specifications and details, which drawings and specifications are identified by the signature of the parties hereto.'

'Art. 4. The subcontractor shall provide sufficient, safe and proper facilities at all times for the inspection of the work by the architects, the contractor or their authorized representatives. He shall, within twenty-four hours after receiving written notice from the contractor to that effect, proceed to remove from the grounds or building all material condemned by them, whether worked or unworked, and to take down all portions of the work which the architects or contractor shall by like written notice condemn as unsound or improper, or as in any way failing to conform to the drawings and specifications.'

Article 5 provides, inter alia, that if the subcontractor shall 'fail in the performance of any of the agreements here contained,' the contractor may terminate the subcontractor's employment, upon three days' notice, and may itself finish the work.

'Art. 10. It is hereby mutually agreed between the parties hereto, that the sum to be paid by the contractor to the subcontractor for the said work and materials shall be three hundred and twenty-five thousand ($325,000) dollars, subject to additions and deductions as hereinbefore provided, and that such sum shall be paid in current funds by the contractor to the subcontractor, in installments as the work progresses, and upon the presentation to the contractor of written certificates, approved by its superintendent or by the architects, to the effect that such payments have become due. Fifteen per cent. of the value of all work done and materials furnished shall be held back, however, and not certified until the time for final payment arrives as hereinafter stated.

'The final payment shall be made within thirty days after this contract is fulfilled.

'Art. 11. It is further mutually agreed between the parties hereto that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials.'

The specifications contain the following provisions:

'All materials shall be the best of their respective kinds.'

'All work shall be done in a neat and skillful manner, exactly as specified or detailed, and if not mentioned or detailed, as the architects may direct. In all cases the work shall be done to the entire satisfaction of the architects.

'All rejected or condemned materials shall be at once removed from the premises and shall not be used in this work.

'All marble shall be of the very best quality, free from cracks, stains, sandholes, or flaws of any sort, and shall be selected to run in even shades. The foreign marble shall be of the kind specified or marked on drawings, and where not marked shall be as selected by the architects.

'All marble shall be set straight to the lines indicated, and the work executed in accordance with details and left in a perfect state, free from stain, mar or defacement of any kind.

'All marble in all corridors and throughout the building, unless otherwise specified, excepting floors and stair treads, to be the best Blanco P. Carrara marble.

'All marble except floors and panels on Grant Street entrance hall and entrance corridor from Fifth avenue to Diamond street on first floor, and grand staircase to basement, and basement entrance hall, to be the best Blanco P. Carrara marble.'

As the work progressed, the architects from time to time expressed dissatisfaction verbally with the marble wainscoting and tiling. Upon one occasion they gave a written notice to the contractor, under the fourth article, that the marble floor in one of the corridors must be removed, because its color was light blue instead of white; and this notice was repeated to, and promptly obeyed by, the subcontractor. The principal source of dispute is to be found in what seems to have been the architects' misunderstanding concerning the meaning of a phrase. As appears from the foregoing quotations, the specifications call for 'Blanco P. Carrara' marble for the wainscoting, and the architects supposed that they were calling for Blanco Puro, intending thereby to specify a pure white marble; but it clearly appears in the course of the trial that 'Blanco P.' marble is 'Blanco Poissant,' the latter word being the name of a firm that owns certain quarries in Italy from which marble is produced and that 'Blanco P.' is understood by the...