JA Jones Const. Co. v. Englert Eng. Co., 20381

• Decision Date: 12 January 1971
• Docket Number: No. 20381,20382.,20381
• Parties: J. A. JONES CONSTRUCTION COMPANY, Third Party Plaintiff-Appellee, v. ENGLERT ENGINEERING COMPANY, Third Party Defendant-Appellant. MISSOURI PORTLAND CEMENT COMPANY, Plaintiff-Appellee, v. J. A. JONES CONSTRUCTION COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

438 F.2d 3 (1971)

J. A. JONES CONSTRUCTION COMPANY, Third Party Plaintiff-Appellee, v. ENGLERT ENGINEERING COMPANY, Third Party Defendant-Appellant.

MISSOURI PORTLAND CEMENT COMPANY, Plaintiff-Appellee, v. J. A. JONES CONSTRUCTION COMPANY, Defendant-Appellant.

Nos. 20381, 20382.

United States Court of Appeals, Sixth Circuit.

January 12, 1971.

J. C. Dale, Jr., Nashville, Tenn., Bailey, Ewing, Dale & Conner, Nashville, Tenn., on the brief; Fleming, Robinson & Bradshaw, Charlotte, N. C., of counsel for J. A. Jones Const. Co.

J. O. Bass, Nashville, Tenn., T. G. Pappas, Nashville, Tenn., Robert S. Allen, St. Louis, Mo., on the brief; Bass, Berry & Sims, Nashville, Tenn., Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., of counsel, for Missouri Portland Cement Co.

Robert W. Sturdivant, Nashville, Tenn., David M. Keeble, Nashville, Tenn., on the brief; Hooker, Keeble, Dodson & Harris, Trabue, Minick, Sturdivant & Harbison, Nashville, Tenn., of counsel, for Englert Engineering Co.

Before TOM C. CLARK, Associate Justice,^* PHILLIPS, Chief Judge, and JOHN W. PECK, Circuit Judge.

CLARK, Associate Justice.

This is an appeal from the judgment of the United States District Court for the Middle District of Tennessee awarding damages of $279,917.33 to Missouri Portland Cement Company, plaintiff-appellee (Missouri), against the J. A. Jones Construction Company, defendant-appellant (Jones), for breach of contract. The latter agreed to construct a cement terminal at Nashville, Tennessee, for Missouri according to the terms and specifications of a contract. Jones, by purchase order, subcontracted the steel erection work on three silos and their supporting columns at the terminal to Englert Engineering Company, third-party defendant (Englert). Upon the completion of the silos Missouri was loading cement into the middle silo for storage when it collapsed. The court found that Jones had breached the contract by failing to follow the plans and specifications thereof and entered a judgment for Missouri. It further found that Englert had in turn breached its contract with Jones and awarded the latter a judgment over and against Englert. We affirm the judgments.

The case was tried without a jury. A memorandum opinion with findings of fact and conclusions of law supporting the judgment was filed by the learned judge. 323 F.Supp. 242. The clarity and logic of this memorandum enables us to dispose of the case without detailed discussion.

The parties stipulated and the court found that the silo collapsed because none of the silos were welded to their supporting columns by a 3/8 inch continuous structural field weld as provided by the contract; and, in the event of a finding of liability, that the damage suffered by Missouri was the amount of the judgment now entered. The controlling issues, therefore, narrow down to questions of fact, i. e., which party caused the failure of the required welding to be performed, and whether Missouri contributed to the damage. The court concluded that Jones breached its contract and that Missouri had not contributed to the breach; that Englert had in turn breached its subcontract with Jones and that the latter had not contributed to its breach; and judgment was entered accordingly in favor of Missouri against Jones and over against Englert on behalf of Jones.

At the outset it is well that we state what is not disputed: the contract and the subcontract by purchase order are valid; the erection drawings and basic contract call for each of the three silos to be welded to its respective supporting columns by a 3/8 inch continuous structural field weld; the additional cost incident to making this weld is included in the contract; none of the silos were welded by a 3/8 inch continuous structural field weld to their respective supporting columns despite the fact that such welds were required by the contracts and designated on the erection drawings actually used in the construction, and, finally, this lack of welding caused the middle silo to collapse under the initial load of cement that was placed upon it, resulting in the damage the amount of which was stipulated.

Jones has two assignments of error. First, that Missouri's project engineer, Neally, had actual or apparent authority to interpret the erection drawings and to direct the caulking of the connections in lieu of welding them; and that Neally's instructions directly caused or contributed to the failure to weld the connections between the silos and the supporting columns. Second, that notice to Neally that the silos were not welded to their supporting columns prior to the loading of the cement into the middle silo was imputed to Missouri and, therefore, the latter cannot recover from Jones. Both the evidence and the findings are against Jones on these points.

We start with the proposition that Rule 52(a) of the Federal Rules of Civil Procedure provides that in actions tried upon the facts without a jury, the findings of fact of the trial judge "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Numerous cases of this and other federal courts have construed this to mean that the findings of fact are "presumptively correct," Why Corporation v. Super Ironer Corporation, 128 F. 2d 539 (C.A. 6 1962). Moreover, the burden is on those who question a finding of the District Court to show that it is clearly erroneous. Hudspeth v. Esso Standard Oil Co., 170 F.2d 418 (C.A. 8 1948). And, finally, the findings "are not clearly erroneous unless the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake was committed; and the burden is upon appellant to show such a mistake." S. C. Johnson & Son, Inc. v. Johnson, 266 F.2d 129, 143 (C.A. 6 1959). We conclude that the findings below are completely supported...