Missouri Portland Cement Co. v. JA Jones Const. Co., Civ. A. No. 4509.

• Decision Date: 05 February 1970
• Docket Number: Civ. A. No. 4509.
• Parties: MISSOURI PORTLAND CEMENT COMPANY, Plaintiff, v. J. A. JONES CONSTRUCTION COMPANY, Defendant, and Third-Party Plaintiff, v. ENGLERT ENGINEERING COMPANY, Third-Party Defendant.
• Court: U.S. District Court — Middle District of Tennessee

323 F. Supp. 242

MISSOURI PORTLAND CEMENT COMPANY, Plaintiff, v. J. A. JONES CONSTRUCTION COMPANY, Defendant, and Third-Party Plaintiff, v. ENGLERT ENGINEERING COMPANY, Third-Party Defendant.

Civ. A. No. 4509.

United States District Court, M. D. Tennessee, Nashville Division.

February 5, 1970.

T. G. Pappas, J. O. Bass, Bass, Berry & Sims, Nashville, Tenn., Robert Allen, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for plaintiff.

James C. Dale, Jr., Bailey, Ewing, Dale & Conner, Nashville, Tenn., for defendant-third party plaintiff.

David M. Keeble, Hooker, Keeble, Dodson & Harris, Robert W. Sturdivant, Trabue, Minick, Sturdivant & Harbison, Nashville, Tenn., for third party defendant.

MEMORANDUM

FRANK GRAY, Jr., Chief Judge.

Plaintiff, Missouri Portland Cement Company (hereinafter Missouri), brought this action for $283,964¹ against defendant-general contractor, J. A. Jones Construction Company (hereinafter Jones), for breach of contract in failing to erect the steel cement storage silos of the Nashville Cement Terminal in accordance with the contract plans and in failing to perform the contractor's guarantee contained in the contract specifications. Subsequently, Jones denied liability, cross-claimed against Missouri for $30,544.81,² the amount remaining unpaid on the contract, and instituted a third party action for indemnity against third party defendant, Englert Engineering Company (hereinafter Englert), to which Jones had subcontracted the steel erection work on the storage silos. This action was tried before the court, sitting without a jury, on November 25 and 26, 1969.

The court, having considered the pleadings, the trial briefs of counsel, the stipulations of the parties, the evidence adduced, and the proposed findings of fact and conclusions of law, now finds as follows:

FINDINGS OF FACT

1. On September 13, 1965, representatives of Missouri met with representatives of Jones in Jones's Nashville office to discuss generally the scope of the planned Nashville Cement Terminal and to negotiate concerning its construction.

2. Following negotiations, Missouri and Jones entered into a contract for the construction by Jones. The contract was in the form of a purchase order dated September 15, 1965, which provided that Jones construct the terminal in accordance with plans and specifications furnished by Missouri, said construction to be performed on a cost plus fee basis. The fee included compensation for Jones' skill, supervision, and assumption of the responsibility for the construction of the terminal.

3. Proximate to the time of their contracting, Missouri furnished Jones general construction plans prepared by Missouri's engineering department, mechanical specifications, electrical specifications, and other miscellaneous documents related to equipment purchases and construction schedules.

4. The mechanical specifications furnished by Missouri and entitled "Mechanical Specifications of Nashville Cement Terminal for Missouri Portland Cement Company at Nashville, Tennessee, September 10, 1965" include the guarantee which Missouri alleges was not performed by Jones. This guarantee applied only to the work done by the mechanical subcontractor, Buchi Plumbing Company, not a party hereto.

5. Subsequently, but prior to the beginning of construction, Missouri furnished Jones erection plans for the steel storage silos and columns of the terminal. These erection plans were prepared by Ingalls Iron Works (hereinafter Ingalls), which company also fabricated the steel for said silos and columns.

6. By purchase order dated November 12, 1965, Jones subcontracted the steel erection work on the storage silos and columns to Englert and furnished Englert copies of the steel erection plans prepared by Ingalls. For the sum of $49,865, Englert agreed to "erect and/or install" the storage silos and columns in accordance with their proposal dated October 14, 1965, which provided for such erection "as per Ingalls Iron Works Company Drawing, order number 31655, Drawing Number 1, Number 22 and Sheets E1 through E7; all marked for approval October 1, 1965. * * *" Emphasis added.

7. Of the erection plans furnished Englert, only two of the drawing sheets, E1 and E2, showed both the steel storage silos and their supporting columns. The structure was comprised of three steel silos, conical in shape at the bottom and cylindrical at the upper part, each supported by six columns. The joinder to the columns was at the upper part and was accordingly an angled connection.

8. Drawing sheets E1 and E2 called for each of the three silos to be welded to its six supporting columns by a three-eighths-inch ( 3/8 ") continuous field weld at all points of contact between each silo and its supporting columns. The requirement of the weld was shown on the erection plans by a standard commonly-known welding symbol and the legend, "typ. all cols." There is no conflict in the evidence as to the meaning of the symbol and legend.

9. In figuring the amount of Englert's bid for the steel erection work, the welding symbol and legend were specifically noted by Englert's sales engineer, R. W. Mendl, and the cost of making the structural welds was included in the bid. Robert M. Marlin, Englert's assistant erection foreman on the Nashville terminal, testified that he saw the welding symbol and legend during the course of construction. Joseph M. Halliburton, Englert's erection foreman, testified that he possibly saw the said symbol and legend during construction.

The welding symbol and legend were plainly visible on the plans and were adequate to inform both Jones and Englert that the silos must be welded in accordance therewith.

10. At the points of connection between each of the eighteen columns and three silos, there were holes for seven-eighths-inch ( 7/8 ") diameter bolts, and the bolt list furnished Englert with the plans specified that these should be high-tensile steel bolts. These bolts were supplied and installed by Englert.

Although there was some testimony indicating that machine bolts would normally be used, the use of the high-tensile bolts here was not unusual or misleading due to the angle of connection between the...