Hanley v. Walker

• Decision Date: 11 April 1890
• Citation: 79 Mich. 607,45 N.W. 57
• Court: Michigan Supreme Court
• Parties: HANLEY et al. v. WALKER.

45 N.W. 57

79 Mich. 607

HANLEY et al. v. WALKER.

Supreme Court of Michigan

April 11, 1890

Error to circuit court, Wayne county; GEORGE GARTNER, Judge.

William Aikman, Jr., (Atkinson Carpenter, Brooke & Haigh, of counsel,) for appellant.

John J. Speed, for appellees.

CHAMPLIN C.J.

The plaintiffs composed the firm of George Hanley & Bro., who were house plasterers doing business in the city of Detroit. In 1886, defendant was building brick dwelling-houses situated upon John R. and Watson streets, in the city of Detroit. They were five in number. On the 26th day of May 1886, the plaintiffs entered into a contract with defendant to do the plastering in these houses according to certain plans and specifications then prepared for said work by William Scott & Co., architects, which plans and specifications were made a part of the contract. The plaintiffs were to furnish and provide all the good, proper, and sufficient materials and labor of all kinds as should be necessary and sufficient for completing and finishing the whole of the lathing and plastering of the five dwelling-houses, for the sum of $2,475. The contract contained this clause: "It is also agreed by and between the parties that the specifications and drawings are intended to co-operate, so that any works exhibited in the drawings and not mentioned in the specifications, or vice versa, are to be executed the same as if they were mentioned in the specifications and set forth in the drawings, to the true intent and meaning of the said drawings or specifications, without extra charge, and, should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by William Scott & Co. and decision shall be final and conclusive." It also contained the following: "The contractor, at his own proper costs and charges, to provide all manner of labor, materials, apparatus, scaffolding utensils, and cartage, of every description, necessary for the due performance of the several works." The fifth article reads as follows: "Should the owner, at any time during the progress of said works, require any alteration of, deviation from, addition to, or omissions in, this contract, consisting of this agreement and the said plans and specifications, made a part hereof, he shall have the right and power to make such change or changes; and the same shall in no way injuriously affect or avoid this agreement, but the difference shall be added to or deducted from the amount of this contract, as the case may be, by a fair and reasonable valuation. No changes shall be made except by written notice from the owner, which may be served on the contractor, subcontractor, or foreman. No omission of work or materials from the plans or specifications shall be deemed extra work if the same is necessary to complete said building in accordance with the general design or purpose for which the same is intended, and the provisions of said plans and specifications, and no work shall in any case be considered extra unless a separate estimate, in writing, for the same shall have been submitted by the contractor to the architect and the owner, and their signatures obtained thereto; and should any dispute arise respecting the true value of any extra work, or of the works omitted by the contractor, the same shall be valued by two competent persons,-one to be chosen by the owner, and the other by the contractor,-and these two shall have the power to name the third, in case they cannot agree, and the decision of the two shall be binding on all parties, in case there be no fraud or collusion."

The specifications required the first, second, and third stories to be plastered with two coats,-the first, of rich brown mortar; the second, excepting coves and splays, to be one hard coat white finish, with plenty of sand; finish composed of cold run putty and plaster of paris, well mixed and put on,-troweled down hard and smooth. They also require the contract or to put up centers, to cost $15 net, in each house, to be selected by the owner or architect. The specifications also contained the following: "Parlors, halls, sitting and dining rooms, to have plaster coves as shown in sketch, rough plastered, and set with pebbles and shells, combed, as may be directed. Second-story halls, and two chambers in each house, to have 9 splayed angles, rough plastered and coarse combed. Plaster to run 3/4 in beads on angles of all plastered angles, and finish and set ornamental brackets. The plasterer will remove all rubbish occasioned by his work from the premises, and leave the building broom clean; furnish and put up cotton cloth to the windows, where required; pay for all broken glass while he is performing his work; and furnish heat and labor for drying the plastering."

The contractor was to be paid from time to time, as the work progressed, upon the certificate of the architect, deducting 10 per cent., until the whole job was completed and accepted, when the balance and such percentage was to be paid on the architects' certificate after the expiration of 30 days after acceptance and approval by the architect and owner, and the full, satisfactory adjustment of all things pertaining thereto. The contract relative to payment contained this proviso: "That before each and every payment is made a certificate shall be obtained from, and signed by, William Scott & Co., architects, to the effect that the work has been done, and materials have been furnished, in strict accordance with this agreement, said drawings and specifications, and that he considers the payment properly due. Said certificate, however, is in no way to lessen the total and final responsibility of said contractor." No time is stated in the contract when the work shall be begun, nor when it shall be completed. Two facts, however, are suggested by the contract: First. That the buildings were not then so far completed as to be in readiness for plastering. This is apparent from the fact that the contract stipulates that Hanley & Bro. shall build the houses, and furnish all material therefor. But this is not claimed, and explanation is found in the fact that a blank form of building contract was used in making the agreement for plastering. Second. The specifications show that the plastering might not be performed until cold weather, as they provide that the contractor shall "furnish heat and labor for drying the plastering." Hence it appears that it was in the contemplation of the parties, on the 26th of May, that the work would be done when the season would require artificial heat to dry the plastering.

The plaintiffs claim that there were two modifications of the written contract: First. On account of delay of the builders, the dwellings were not ready for the plasterers until late in the season of 1886. The plaintiff George Hanley testifies that they entered upon the performance of the contract about the middle or last of October; that he had a conversation with defendant about the 1st of October, in which, after mentioning the cause of delay, he said: "'We are into the cold weather and we will have to provide some means of heating;' and he asked me to suggest something to get over the difficulty. I told him that the only way we could do it now would be by using salamanders and coke fires until such times as he would be able to get his proper heating arrangements in shape, and he said he would furnish the coke if I would supply the salamanders. He asked me if I could not make our mortar in the cellar, in order to protect it from the weather. I told him it was not necessary; that we could do it outside as well." He further testified that salamanders were fit only for use in drying out the brown coat; that it is not usual to use them during the progress of the second coat, as it has a tendency to discolor the work; and that he did not use them in this work for that reason. He testified that the second coat was put on after the first coat was dry. From the testimony of Mr. Hanley, it appears that no modification whatever was made in the terms of the contract except that Mr. Walker agreed to furnish coke for the heating, which relieved Mr. Hanley of that expense. The other modification claimed by Mr. Hanley to have been made was in reference to the manner in which the coves were to be finished. The testimony of Mr. Hanley in support of this claim is as follows: "The coves were not put in according to specifications. They were finished in soap-stone, by an arrangement with Mr. Crittenden. I considered that Mr Crittenden was acting for Mr. Walker in his absence. Previous to Mr. Walker going away, I had an interview with him, and he said to me that anything I needed, to call down and see Mr. Crittenden, and, if there was anything I wanted an explanation about, to come down there and have a talk with Mr. Crittenden. He was in Mr. Walker's office, and apparently in charge of the office business,-book-keeping, or something of that kind. I called Mr. Crittenden's attention to what would be the appearance of the work if put in according to specifications. So we finished the coves in soap-stone, according to the specimen furnished to Mr. Crittenden. * * * I told Mr. Crittenden that, while soapstone was more costly work, as Mr. Walker was away, I would not charge anything additional for the change." On cross-examination he testified: "Mr. Walker did not say anything to me with regard to Mr. Crittenden's agency. He merely said, if I needed anything to go down and see him. That was in the latter part of November, as near as I can recollect; just before Mr. Walker went west." The defendant testified in his own behalf that he never authorized any change in the plans and specifications. He claims that the work was not done...