Pettit-Galloway Co. v. Womack
| Decision Date | 09 February 1925 |
| Docket Number | 156 |
| Citation | 268 S.W. 353,167 Ark. 356 |
| Parties | PETTIT-GALLOWAY COMPANY v. WOMACK |
| Court | Arkansas Supreme Court |
Appeal from Saline Chancery Court; J. P. Henderson, Chancellor reversed.
STATEMENT OF FACTS.
Pettit-Galloway Company brought this suit in equity against Chas. H. Womack to foreclose a mechanic's lien for $ 3,786.50, alleged to be due it for installing a plumbing and heating system in a theatre and two stores belonging to the defendant. The suit was defended by Womack on the ground that the plaintiff had not complied with its contract in installing the heating plant, and had installed a wholly different system from that provided in the contract.
On October 17, 1919, Pettit-Galloway Company entered into a written contract with Chas. H. Womack of Benton, Arkansas, to supply all the materials and perform all the work necessary to installing a plumbing and heating system in a theatre building and two stores at Benton, Arkansas. The contract recites that it was prepared by Sanders & Ginocchio, who were the architects, and who had prepared the specifications under which the work was to be done.
Section 3 of the specifications, which are made a part of the contract, provides that the work shall be executed in conformity with the drawings and instructions furnished by the architects. It further provides that the architect shall have authority to make minor changes in the work, not involving extra cost, and not inconsistent with the purposes of the building.
Section 9 provides that the architect shall have general supervision and direction of the work, and that he is the agent of the owner only to the extent provided in the contract. This section also recites that, inasmuch as the architect is the interpreter of the conditions of the contract and the judge of its performance, he shall side neither with the owner nor with the contractor, but shall use his powers under the contract to enforce its faithful performance by both.
Section 10 provides that the architect shall make decisions on all claims of the owner or contractor, and on all other matters relating to the execution and progress of the work or the interpretation of the contract documents.
Section 13 provides for an inspection of the work as it progresses by the architect.
Section 14 provides for the removal by the contractor of all work condemned by the architect as failing to conform to the contract, and that the contractor will properly replace such work in accordance with the contract, without expense to the owner.
Section 16 provides that the owner shall give notice of observed defects with reasonable promptness. It further provides that all questions arising under this section shall be decided under §§ 10 and 45. We have already given the substance of § 10. Section 45, when read in connection with § 10, provides the manner in which the architect's decisions are subject to arbitration.
According to the evidence for the plaintiff, what is usually called the overhead heating system was specified in the contract because the architect was informed that the basement of the building in which the boiler was to be located would not have sufficient drainage to adopt what is called the up-feed system. Soon after the work was started, the representative of Pettit-Galloway Company found that the basement was deeper than the profile showed, and that he could put in the up-feed system of heating. The architect was there, and his attention was called to the matter. He immediately instructed the contractor to install the up-feed system instead of the overhead system. After the up-feed system had been installed a test was made of it, and Womack told the contractor that he might draw the fires, as it had been demonstrated that it would heat the building. Afterwards he refused to pay the plaintiff for its work on the ground that there had been a change from the overhead system to the up-feed system and that this change was a material one, and that the up-feed system was not nearly so adapted for the purpose of heating the building as the one he had contracted for.
Four witnesses for the plaintiff, including the firm of architects who had charge of the installation of the system, and the superintendent in charge of the work for the plaintiff, and his foreman, all testified that the up-feed system was more efficient for heating buildings of this character with hot water than the overhead system. It was cheaper, and the contractor had agreed to deduct proportionately the amount provided under his contract. They also testified that there was greater danger of freezing in the overhead system, and that the pipes are exposed on the inside of the building under that system, which tends to make it more unsightly in appearance. They also testified that the change from the overhead to the up-feed system was not a material change because the main purpose of the installation of the heating system was to heat the building at the least cost.
On the other hand, two experts for the defendant testified that the change from the overhead to the up-feed system of heating was a material one, and that the overhead system was much better than the up-feed system. The witnesses on both sides gave in detail the reasons for their belief in the efficiency of the respective systems. Other testimony will be stated or referred to in the opinion.
The chancellor was of the opinion that the change from the overhead to the up-feed system in the installation of the heating plant was a material change, and that, on this account, the plaintiff was not entitled to recover in the action. From an adverse decree the plaintiff has duly prosecuted an appeal to this court.
Decree reversed, and cause remanded.
W. R Donham, for appellant.
Substantial compliance with the contract is all that is required. Where work has been done in substantial compliance with the terms of the contract, or has been accepted, the contractor may, notwithstanding defects therein, recover the contract price, less the cost of correcting such defects. 64 Ark. 34; 79 Ark. 506; 97 Ark. 278; 105 Ark. 353; 122 Ark. 308; 147 Ark. 308; 157 Ark. 430. Here, there was not only a substantial compliance with the contract, but there was a literal compliance. No changes were made except those minor changes made by the architects which they were empowered by the contract to authorize. Appellee by his conduct and what he said at the time of the test of the heating system, must be held to have accepted the same.
Brouse & McDaniel, for appellee.
The materiality of the change did not consist in the change from the overhead to the up-feed system alone, but also in the manner of the installation of the latter system, in that appellant did not dig out the earth and lower the boiler so as to allow an up-feed system which would have been taken off at the top of the boiler. This resulted in the pipe being carried up under the concrete floor uncovered and exposed to contact with the earth, to dampness and rust; and while the original plan provided for expansion and contraction of the pipes, in the system used the pipes were cemented through the floor, which would necessarily result in breakage through expansion and contraction. The boiler itself was not properly covered according to the contract. There are limitations to the rule as to substantial compliance. The courts will not permit substitutions to be made by contractors or architects. 137 Wis. 169, 24 L. R. A. (N. S.) 327 and notes. When appellant departed from the contract and substituted an up-feed system, it was bound to take notice of the...
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