Greater Richmond Civic Recreation, Inc. v. A. H. Ewing's Sons, Inc., 4866

• Citation: 106 S.E.2d 595,200 Va. 593
• Decision Date: 26 January 1959
• Docket Number: No. 4866,4866
• Parties: GREATER RICHMOND CIVIC RECREATION, INCORPORATED, ET AL. v. A. H. EWING'S SONS, INCORPORATED. Record
• Court: Virginia Supreme Court

Page 595

106 S.E.2d 595

200 Va. 593

GREATER RICHMOND CIVIC RECREATION, INCORPORATED, ET AL. v. A. H. EWING'S SONS, INCORPORATED.

Record No. 4866.

Supreme Court of Appeals of Virginia

January 26, 1959.

Edward A. Marks, Jr. (Sands, Marks & Sydnor, on brief), for the plaintiffs in error.

Walter E. Rogers (Williams, Mullen, Pollard & Rogers, on brief), for the defendant in error.

JUDGE: I'ANSON

I'ANSON, J., delivered the opinion of the court.

This action was instituted by Greater Richmond Civic Recreation, Incorporated, and the City of Richmond, Virginia, hereinafter referred to as the plaintiffs, against A. H. Ewing's Sons, Incorporated, hereinafter referred to as the defendant, to recover the sum of $46,460.10, as damages arising out of a breach of contract by the defendant to furnish and install certain floodlighting poles and equipment at Parker Field in the City of Richmond, Virginia, which field was owned by the City of Richmond Virginia, and leased by Greater Richmond Civic Recreation, Inc. To the plaintiffs' motion for judgment, bill of particulars, and amended and supplemental bill of particulars, a demurrer was interposed by the defendant, which was sustained by the trial court. The motion for judgment was then amended and another demurrer was interposed, which was also sustained, and the case dismissed.

From the allegations in the motion for judgment, the bill of particulars, the amended and supplemental bill of particulars, and the amended motion for judgment it appears that under the terms of a certain verbal agreement made and entered into between the plaintiffs and the defendant between March 18 and May 3, 1954, as evidenced by a written memorandum thereof signed by the defendant, dated May 3, 1954, the defendant undertook to furnish and install at Parker Field in the City of Richmond, Va., certain floodlighting equipment and poles to support the same, all of which said work, the manner of its performance, and the conditions pertaining to the same, was fully set out in certain plans and specifications incorporated in the written memorandum by reference.

The defendant, in and about the performance of the work, was required to furnish and install 23 steel poles to support the floodlighting system. The poles were described in the plans and specifications as follows:

Sec. '23. Steel Poles: (a) Steel poles shall be located as indicated on the plans. They shall be 100 feet in height and shall be equipped with platform assemblies, cross-arms, etc., all as indicated on the plans. The poles shall be design #544-Y-53 for mounting 32 floodlights per pole as manufactured by Union Metal Manufacturing Company, Canton, Ohio, or approved equal. The poles shall be guaranteed to withstand a wind pressure of 100 mph when the pole is completely equipped with all lights, wires, etc., in its intended location. The steel poles shall be mounted on the concrete foundations as indicated.' (Italics supplied.)

The defendant elected to furnish and install 23 steel poles manufactured by Union Metal Manufacturing Company, but failed to furnish poles guaranteed to withstand a wind pressure of 100 miles per hour when fully equipped with all lights, wires, etc., in their intended location, and failed to furnish and install poles which were in fact capable of withstanding such wind pressure when so equipped and erected. The plans and specifications also provided:

Sec. '31. Testing and Guarantee: * * *

'(b) * * * [The contractor] shall guarantee the material, equipment and workmanship furnished by him shall be entirely free from defects, and that he will repair or replace at his own expense as may be directed by the Architect, any material, equipment or workmanship in which defects may develop within one year from date of final payment for the work.'

On or about October 15, 1954, at the time 'Hurricane Hazel' struck in the area, and within one year from the date of final payment for the work, many of the poles so furnished, installed and guaranteed by the...