Granette Prods. Co. v. Arthur H. Neumann & Co., 38413.
| Decision Date | 28 September 1928 |
| Docket Number | No. 38413.,38413. |
| Parties | GRANETTE PRODUCTS CO. v. ARTHUR H. NEUMANN & CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; O. S. Franklin, Judge.
Action by subcontractor to recover damages for breach of a contract to pay for material manufactured and furnished to the principal contractor for the construction of a building. The cause was submitted to a jury, who returned a verdict for the plaintiff, and defendant appeals. Affirmed.Carr, Cox, Evans & Riley, of Des Moines, for appellant.
Fred F. Keithley and Guy A. Miller, both of Des Moines, for appellee.
This is the second time this cause has been in this court. See Granette Products Co. v. Neumann & Co., 200 Iowa, 572, 203 N. W. 935, 205 N. W. 205. The appellant entered into a contract with the Independent school district of Council Bluffs for the construction of a high school building. After appellant had obtained said contract, it in turn entered into a contract with the appellee, by the terms of which the appellee undertook to furnish appellant a certain manufactured architectural stone known as granette, to be used in the construction of said building. Appellee sues to recover for the granette which it claims furnished to appellant under its contract and which it contends the architects in charge of the construction of the building accepted and approved. The appellant contends that the material furnished by appellee was rejected in toto by the architects and that such rejection is binding and conclusive upon appellee, and that appellant is not liable therefor. Appellant pleaded that a custom existed by which in such cases the principal contract between the appellant and the school district was binding upon appellee, and contends that under such principal contract the architects could reject the material furnished by appellee at any time, and appellant contends that the material was so rejected.
Appellant also contends that, as a matter of law, regardless of the custom pleaded, the principal contract was binding on the appellee, and that because thereof the rejection of the material by the architects was conclusive of appellee's right to recover from appellant.
[1] The trial court submitted the question of the alleged custom to the jury under an instruction to the effect that if the jury found that by such a custom the principal contract was binding on the appellee, then the rejection of the material by the architects would be conclusive against appellee. The jury found for appellee, and hence must have found that no custom existed as claimed by appellant. We therefore consider appellant's contention that, as a matter of law, the principal contract was binding upon appellee as to the right of the architects to reject the material at any time.
The contract between appellant and appellee provides in part as follows:
“Section I. The subcontractor agrees to furnish all labor and materials necessary to complete work as described in section II of this agreement for the Council Bluffs high school, Council Bluffs, Iowa, according to plans and specifications prepared by Proudfoot, Bird & Rawson, architects, located at Des Moines, Iowa.
Section II. The subcontractor agrees that the material to be furnished and work to be done by him is as follows: All of the ‘granette’ concrete architectural stone trim, including all sills, steps, etc., in lieu of Bedford stone as mentioned and called for in revised plans and specifications as prepared by the above mentionedarchitects. Sample of ‘granette’ to be approved by architects. It is further agreed that the subcontractor will furnish setting plans and number all stones, also provide each stone with anchor and lewis holes as necessary. Setting plans to be submitted to architects, also all finished product to be same as approved sample, also all moulding to run true and corners square and straight. All of the above-mentioned work to be subject to the approval of the above-mentioned architects.”
This portion of the contract was before us on the former appeal. We therein held that the appellee was a subcontractor rather than a mere seller of material, and recognized the general rule that where a subcontractor undertakes to do work according to the plans and specifications of the principal contract, such plans and specifications become a part of his contract even without an express provision that they are so made a part thereof. We said:
“We are of the opinion that the provisions of the specifications relating to the right of the architects to require the contractor to remove from the premises such of the materials or work as in their opinion are not in accordance with the plans and specifications, and to substitute satisfactory work and materials, and providing that the decision of the architects as to the true intent and meaning of the plans and specifications shall be final and binding upon both parties to the contract, and that the term ‘contractor,’ as used in the plans and specifications, should mean the person or persons who contracted for the performance of the work, became also parts of the contract and binding upon the plaintiff.”
II. The plans and specifications contained the following provisions:
The plans and specifications also contained this further provision:
“The decision of the architects as to the true intent and meaning of the plans and specifications shall be final and binding upon both parties to the contract.”
The principal contract between defendant and the school district for the construction of the high school contained the following provision:
“The party of the first part shall provide sufficient safe and proper facilities at all times for the inspection of the work by the architects, or their authorized representatives; shall, within twenty-four hours after receiving written notice from the architects to that effect, proceed to remove from the grounds or buildings all materials condemned by them, whether worked or unworked, and to take down all portions of the work which the architects shall by like written notice condemn as unsound or improper, or as in any way failing to conform to the drawings and specifications, and shall make good all work damaged or destroyed thereby.”
The contention of appellant is that the appellee is conclusively bound by a rejection of the material furnished by appellee, by the architects. It is contended by appellant that such rejection on the part of the architects was conclusively shown by the evidence in the case, and that this is final, determinative, and binding upon the appellee, and that the court should have directed a verdict for the appellant.
The appellee's contention at this point is that even if the appellee is deemed to be bound by the plans and specifications and by the terms and provisions of the principal contract, under the evidence in the case the architects did approve of the material furnished by the appellee, and, having once so approved of said material, could not thereafter reject the same, and such rejection would not be binding upon the appellee.
For the purposes of determination of the question involved at this point regarding the ruling on the motion for a directed verdict, we assume, without deciding, that the appellee as such subcontractor was bound, not only by the terms and provisions of the contract between the appellee and the appellant, but also by the plans and specifications for the construction of said building, and likewise by the terms and provisions of the principal contract between the appellant and the school district in so far as they were applicable to the matter involved in the contract between the appellee and the appellant regarding the material to be furnished. See Blanding v. D. I. & D. R. Co., 88 Iowa, 225, 55 N. W. 81. See, also, Avery v. Ionia County, 71 Mich. 538, 39 N. W. 742.
The appellee offered evidence tending to show that after the first car of material was shipped by the appellee, a representative of the architects came to appellee's plant and inspected all of the material prior to the same being loaded in the car for shipment, and that the portion of the material that was not then satisfactory to the architects was marked as rejected and was not shipped; that after pieces of the material were so marked as rejected, appellee made new pieces to replace those that were rejected; that from time to time lists of pieces that had been rejected at the building were forwarded to appellee from Council Bluffs, and were replaced by other pieces furnished by appellee; that out of approximately 6,000 pieces that were made, all but the first carload totaling about 800 pieces were inspected at appellee's plant and were set aside for shipment by the representatives of the architects; that the portion that was so set aside was requested by the architects to be shipped and the portion that was rejected was directed to be remade. It appears that appellee manufactured and shipped to...
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