Midgley v. Campbell Bldg. Co.

• Citation: 38 Utah 293,112 P. 820
• Decision Date: 04 January 1911
• Docket Number: 2142
• Court: Supreme Court of Utah
• Parties: MIDGLEY et al. v. CAMPBELL BUILDING COMPANY

112 P. 820

38 Utah 293

MIDGLEY et al. v. CAMPBELL BUILDING COMPANY

No. 2142

Supreme Court of Utah

January 4, 1911

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by E. A. Midgley and another against the Campbell Building Company.

Judgment for plaintiffs. Defendant appeals.

AFFIRMED.

Henderson Pierce, Critchlow & Barrette for appellant.

APPELLANT'S POINTS.

The rule is well settled that where one undertakes to supply an article to the approval of the purchaser, no court or jury may substitute its approval for that of the purchaser. (6 Cyc. 617-618; Tatum v. Geist [Wash.], 89 P. 547; Stottes v. Miller [Iowa], 105 N.W. 127; Inman Mfg. Co. v. American Cereal Co. [Iowa], 100 N.W. 860; Payne v. Roberts [Pa.], 64 A. 86; Singerly v Thayer [Pa.], 2 A. 230; Silsby Mfg. Co. v. Town of Chico [Cal.], 24 F. 893; Plano Mfg. Co. v. Ellis [Mich.], 35 N.W. 841; Wood Machine Co. v. Smith [Mich.], 15 N.W. 906; Fairmount Plumbing Co. v. Carr [W. Va.], 46 S.E. 458; Barrett v. Coal Co. [W. Va.], 90 Am. St. Rep. 802; Hudson v. McCartney, 33 Wis. 331; Waite on Engineering and Architectural Jurisprudence, p. 281; Brown v. Foster, 113 Mass. 136.) A right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question, or fact, once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first-suit remains unmodified. (Southern Pacific R. R. Co. v. United States, U. S. S.Ct. Rep., vol. 167, p. 355; Russell v. Place, 94 U.S. 606; Smith v. Kernochen, 48 U.S. 198; Washington, etc., Co. v. Sickles, 65 U.S. 24; Cromwell v. Sac County, 94 U.S. 351; Campbell v. Rankin, 99 U.S. 261; Mason Lbr. Co. v. Buchtel, 101 U.S. 638; Bissell v. Spring Valley Township, 124 U.S. 225; Johnson Co. v. Wharton, 152 U.S. 253; Harrison v. Remington Paper Co. (C. C. A.), 140 F. 385; Franklin County v. German Savings Bank, 142 U.S. 93; Peay v. Salt Lake City, 11 Utah 331; Hodson v. U. P. Ry. Co., 14 Utah 402; R. G. W. Railway Co. v. Telluride Power Co., 23 Utah 22.)

Moyle & Van Cott and Powers and Marioneaux for respondents.

STRAUP, J. McCARTY, J., concurs. FRICK, C. J., concurring in the result.

OPINION

STRAUP, J.

In May 1902, the government of the United States entered into a written contract with the appellant, the Campbell Building Company, to construct a government building at Salt Lake City, in accordance with plans and specifications prepared by the supervising architect. About twelve pages of typewriting of such plans and specifications relate to the plumbing of the building, in which are enumerated and described in detail the kind, character, quality, grade, etc., of each fixture and article to be furnished and used for such purpose. Such portion of the plans and specifications also contained a stipulation that "the required material and fixtures must in each case be in strict accordance with the specifications, and of the best quality and grade found in the market," and that "the contractor immediately after the award of the contract is to furnish for approval of the supervising architect the name and address of the manufacturer and catalogue number of the following named fixtures he proposes to use: Water-closets, urinals, slop sink, wall hydrants, fire hose rack, gate valves, pressure reducing valve, basin faucets, shower bath, and water heater." Neither in the contract between the government and the Campbell Building Company, nor in the plans and specifications, was it stipulated or provided that the material or fixtures to be furnished and used should be made by any particular manufacturer. It, however, was made to appear by the evidence that on the 6th of March, 1903, nearly one year after the making of the contract between the government and the Campbell Building Company, and about one year before the Campbell Building Company entered into the contract with the Midgley Brothers, the Campbell Building Company, by letters, submitted to the supervising architect a list and catalogue number of the articles referred to, and gave Clow & Sons as the name of the manufacturer, which were then approved by the supervising architect. On the 9th of March, 1904, after receiving and accepting one of several different bids submitted by Midgley Brothers, the Campbell Building Company entered into a contract with them to furnish the material for, and to do the plumbing work of, the building, by the terms of which Midgley Brothers agreed "to furnish all and singular the materials and labor necessary to complete the plumbing, gas fitting, sewerage, etc., under the specification headings from page thirty-three and one-half to forty-five, inclusive," relating to the plumbing, "all to be in strict and full accordance with the plans, details and specifications prepared by" the supervising architect. It was further stipulated in their contract that the "second party (Campbell Building Company) for and in consideration of the first parties (Midgley Bros.) completing and faithfully executing the aforesaid contract and by and at the time mentioned and to the full and complete satisfaction of the supervising architect, and the superintendent of construction, does hereby agree to pay" Midgley Brothers, the sum of nine thousand, five hundred dollars at the times and in the manner specified in the contract. There is nothing contained in the contract between the Campbell Building Company, and Midgley Brothers requiring the latter to furnish or use fixtures or material manufactured by Clow & Sons, or by any particular manufacturer. So much of the plans and specifications prepared by the supervising architect as related to the plumbing was, however, made a part of their contract; but, as we have observed, the plans and specifications themselves did not require the fixtures or material furnished or used to be manufactured by Clow & Sons, but did require the Campbell Building Company to submit to the supervising architect the name and address of the manufacturer and the catalogue number of the fixtures proposed to be used, which, as before stated, was submitted to the supervising architect by the Campbell Building Company, and approved by him about one year before the making of the contract between the Campbell Building Company and Midgley Brothers. After the Midgleys had partly performed their contract by the furnishing and using of goods and material supplied by and purchased from Crane & Company, and had received partial payments for materials so furnished and used by them and for work done, and after they had purchased from Crane & Company, certain other fixtures and material -- those in question -- and had taken them to the building to be installed a controversy arose between the supervising architect, who was at Washington, D. C., and who had not been at or about the building, and who had no personal knowledge of the character or quality of the goods furnished by the Midgleys and the Campbell Building Company with respect to the question of whether such fixtures and material were purchased from, or supplied by, Clow & Sons. Because they were purchased from Crane & Company, and not from Clow & Sons, the supervising architect condemned and rejected them. The Campbell Building Company thereupon notified the Midgleys of such action taken by the architect, requested them to remove the fixtures, demanded that they furnish fixtures satisfactory to the architect, and proceed with their contract in accordance with the plans and specifications, and notified them that, upon their refusal or failure so to do, the Campbell Building Company would itself obtain such fixtures and complete the plumbing work, and hold the Midgleys responsible for any damages sustained by it. The Midgleys took the fixtures away, but refused to further proceed with the work. Thereupon the Campbell Building Company purchased fixtures from Clow & Sons, and completed the work at a cost in excess of that contracted for, occasioned by a higher price paid to Clow & Sons for the goods than was required to be paid to Crane & Company for the same goods. The Midgleys brought an action against the Campbell Building Company, seeking a reformation of the contract entered into between them and the Campbell Building Company. It was alleged by them that the written bid submitted by them to and accepted by the Campbell Building Company was based on fixtures to be furnished by Crane & Company, that such provision was a part of their agreement, and was intended to have been incorporated in and made a part of their written agreement, but by mutual mistake was omitted. Upon such a reformed contract, they alleged a breach on the part of the Campbell Building Company and claimed damages on account of it. The Campbell Building Company denied the allegations of the complaint, and alleged "that there was no agreement ever made at any time between plaintiffs and the defendant that the plaintiffs should furnish any certain manufacturer's goods, but it was expressly agreed that any goods furnished by the plaintiffs were to be in strict and full accordance with the plans, details, and specifications prepared by the supervising architect and to the full and complete satisfaction of the supervising architect, and the super-intendent of construction" of the building, and that the contract, as heretofore set forth, expressed the true intention of the parties. It was further alleged by it that the goods furnished by the plaintiffs were not approved, but were rejected by the supervising architect. By way of...