Puget Sound Nat. Bank of Tacoma v. C. B. Lauch Const. Co.
| Citation | 245 P.2d 800,73 Idaho 68 |
| Decision Date | 18 June 1952 |
| Docket Number | No. 7805,7805 |
| Parties | PUGET SOUND NAT. BANK OF TACOMA v. C. B. LAUCH CONST. CO. |
| Court | United States State Supreme Court of Idaho |
Hawley & Marcus, Boise, for appellant.
Kibler & Beebe, Nampa, for respondent.
C. B. Lauch Construction Company, defendant and appellant, entered into a contract dated the 20th of October, 1947, with the Boise Hills Village Incorporated, to construct certain houses and make improvements pursuant to drawings, plans and specifications made a part of the contract. Thereafter, by three several written instruments, part of the contract work so undertaken by appellant was sublet to Saxon Painting Company, hereinafter referred to as Saxon.
By one of these subcontracts, appellant '* * * for the full, complete and faithful performance of this subcontract, agrees to pay to the subcontractor, in accordance herewith, the sum of ($53,500).' For said sum Saxon agreed 'To furnish all supervision, labor and materials, and perform all work as described in Paragraph 3 hereof, for the construction of Boise Hills Village project.'
Paragraph & referred to reads:
The specifications referred to in this paragraph in the contract between the appellant and the Boise Hills Village Incorporated reads:
(Emphasis supplied)
The subcontract also contained a provision reading:
The subcontractor (Saxon):
'To be bound by the terms of said Main Contract with the Owner (including every part of and all the general and special conditions, drawings, specifications and addenda), in any way applicable to this subcontract, and also by the Provisions Printed On The Reverse Side Hereof, which are hereby referred to and made a part of this subcontract.'
This subcontractor further assumed, so far as the subcontract work was concerned 'all the obligations and responsibilities which the contractor assumed toward the owner by the main contract * * *.'
Other parts of the work undertaken by the appellant were also sublet to Saxon. The amounts earned under these other contracts are not in dispute.
In addition to the general provisions defining the work to be done, and the material to be furnished, the subcontract contained the following provisions:
Saxon
Pursuant to the subcontract Saxon commenced the painting operation in January, 1948, completing work thereunder in December of the same year. Saxon made assignments of all sums due or to become due under the contract to the plaintiff bank, respondent here.
In June, 1949, six months after Saxon had completed the painting job, objection to the work was made by the owner, or those acting for it. This objection was not made on the grounds that the paint used did not conform to specifications, or the application of the same to the wood was not properly done, or that any of the wood had been left unpainted. The objection was entirely on other grounds.
In furnishing the paint, Saxon was limited to a certain brand of factory mixed paint. He had nothing to do with the selection of colors, this being a privilege of the owner, to be selected from certain basic or multiple colors which appeared in the specifications, and when so selected, it was the contractual duty of Saxon to apply the same to the wood of the building.
During the progress of the work, Saxon performed certain extra work and claimed an additional sum earned, amounting to $21,464.19. This extra work claim was disputed by appellant and after some negotiations, a settlement was made and the extra work adjusted in the sum of $13,670.68. For the work done under the subcontracts, and the extra work performed and agreed to by settlement, Saxon claimed to have earned an aggregate of $81,826.68. There were cash and other credits of $61,868.03, leaving, according to Saxon, a balance of $19,958.65.
In a letter dated March 16, 1949, three months subsequent to the time Saxon claimed to have performed his contract and left the job, addressed to an officer of respondent, signed by the appellant, a complete tabulation of the amounts earned, including sums by reason of the contract now in dispute, and the credits given was furnished the respondent. The balance shown amounted to the sum of $19,958.65.
Payment not having been made, plaintiff brought this action as assignee of Saxon to recover the amount claimed due.
The answer, among other things, alleged that the painting work was unsatisfactory and that the Federal Housing Administration, in July, 1949, after an inspection of the Boise Hills Village project, had made a list of claimed deficiencies in performance by the appellant, and one of the claimed deficiencies listed was the unsatisfactory condition of the exterior paint applied by Saxon; that to conform the exterior paint to the specifications made a part of all contracts, and to secure final approval required an additional coat of paint on all exterior surfaces; and that after notice to Saxon and his refusal to apply a third coat of paint, appellant repainted the exterior of the Boise Hills Village project, and made the same acceptable to the owners at an expense of $8,810.45. The answer asked to have this sum offset against the sum claimed by respondent.
On issues thus joined, the matter was tried before a jury and a verdict rendered for $19,958.65, for which amount judgment was entered. Defendant appealed.
Among the objections made to the exterior painting job, for which appellant claimed an offset was that the paint had faded after being applied; the siding to which the paint was applied was in a warped condition; that Saxon failed to make objection to the siding; that the siding was not the type called for in the specifications; that he made no objection and went ahead with the painting job; further that Saxon knew that two coats of paint were insufficient to hold colors in a sunny climate.
In answer to these contentions it should be noted that Saxon had nothing to do with the furnishing or placing of the siding on which the paint was to be applied. The contract called for a two coat paint job, not three, and whether the job was sufficient or not, it was the specification under which Saxon did the painting. The kind of paint to be used with mix and priming were matters with which Saxon had nothing to do. There is no contention that the paint used did not fully comply with the specifications under which the work was done, or that the paint was not properly applied. Under the contract, Saxon had nothing to do with the selection of paint or colors. He was to apply two coats of paint of a specified kind, and whether or not this was sufficient was a matter over which Saxon had no control. If the...
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...497 P.2d 1056 (1972); Gates v. Pickett & Nelson Construction Co., 91 Idaho 836, 432 P.2d 780 (1967); Puget Sound Nat'l Bank v. C.B. Lauch Constr. Co., 73 Idaho 68, 245 P.2d 800 (1952). Furthermore, the rationale underlying the immunity is not dependent upon whether the work is complete or o......
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