Robinson v. Webb
| Decision Date | 23 October 1875 |
| Citation | 74 Ky. 464 |
| Parties | Robinson, & c. v. Webb Robinson, & c. v. Speed. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.
MUIR BIJUR & DAVIE, BODLEY & SIMRALL, For Appellants,
Shear & Red. on Negligence, secs. 60, 63, 64, 76, 82, 496, 42.
2 Hilliard on Torts, 436, 446.
2 Greenleaf's Evidence, 232, b.
5 Gillen, 509, Armstrong v. Conley.
5 Gillen, 425, Johnston v. Barbour.
4 B. & Ald. 590, Craft v. Allison.
2 Robertson, N. Y. 307, Beamish v. Hoyt.
2 Robertson, N. Y. 303, Seabrook v. Hecker.
8 Cal 489, etc., Boswell v. Laird.
4 Selden, 222, Pack v. Mayor of New York.
1 Kernan, 432, 435, Kelly v. Mayor of New York.
7 Bosworth, 513, O'Rourke v. Hart.
9 Mees. & Wels. Ex. 710, Rapson v. Cubett.
4 Exch. 244, 257, Reedie v. Railway Co.
5 Exch. 721, Knight v. Fox.
4 Exch. 257, Hebert v. London & Northwestern R. R. Co.
2 Black, 424, etc., City of Chicago v. Robbins.
2 Duvall, 139,Matheny v. Wolffs.
1 Selden, Blake v. Ferris.
1 P. F. Smith, 475, Hunt v. Pennsylvania R. R. Co.
2 Hilliard on Torts, pp. 436, 446.
4 Bos. 148, Potter v. Seymour.
1 B. Mon. 96, Ferguson v. Terry.
12 Allen, 56, Howe v. Wemarch.
19 Wend. 347, Wright v. Wilcox.
24 Conn. 40, Thames St. Co. v. Housatonic Co.
30 How. Pr. 315, Garoy v. Donn.
26 Ind. 72, Evansville Railroad Company v. Bauer.
16 B. Mon. 582, Kountz v. Brown.
45 Ill. 455, Schwartz v. Gilmore.
30 Mo. 207, Deford v. State.
50 N.Y. 639, Brooks v. Curtis.
38 Cal. 691, De Pratt v. Lick.
17 N.Y. 204, Storrs v. City of Utica.
36 Barb. 288, Benedict v. Marlin.
21 Iowa 578, Kellogg v. Payne.
14 Minn. 43, Shell v. Second National Bank.
12 Am. Law Reg. O. S. 354, Pointer v. City of Pittsburg.
57 Pa. 374, 382, etc., Allen v. Willard.
35 N.J. 17, Cuff v. Newark & New York Railroad Company.
73 Eng. Com. Law, 867, Overton & Freeman.
16 Eng. Com. Law and Eq. 443, Peachy v. Rowland.
32 Law Jour. Rep., part 8, N. S., Gray v. Hubble.
27 Conn. 280, Corbin v. The American Mills.
59 Me. 520, Eaton v. European & N. Amer. R. W. Co.
17 Mo. Barry v. City of St. Louis.
25 Ill. 438, Scammon v. Chicago.
14 Maine, 96, Grigg v. Fleckenstine.
104 Mass. 140, Mayor v. Railroad Company.
JAMES SPEED, JOHN ROBERTS, BARR, GOODLOE & HUMPHREY, WM. F. BARRET, ST. JOHN BOYLE, For Appellees,
3 Law Rep. (Eng. & I. Appeal Cases), 340, Ryland v. Fletcher.
2 Black. 427,Chicago v. Robbins.
3 Gray, 349, Hilliard v. Richardson.
1 Chitty's Pleadings, side page 151.
2 Duvall, 138,Matheny v. Wolffs.
6 Exch. 499, Hale v. Railway Company.
15 Com. B. 515 (N. S. 376), Baird v. Williams.
30 Md. 204, Deford v. The State, & c.
Robinson and Pettet, two of the appellants in this case, holding the title to a lot of ground in the city of Louisville as trustees under the will of Wm. F. Pettet, deceased, one of the trustees, Charles Pettet, the other concurring, on the 9th of July, 1872, entered into a written contract with John Hehl to erect a building on this lot in accordance with the specifications and drawings made by John Andrewartha, an architect. This contract reads:
" This contract made and entered into this 9th day of July, 1872, by and between Charles H. Pettet, trustee of the estate of W. F. Pettet, deceased, as party of the first part, and John Hehl, builder, as party of the second part:
Witnesseth, That the party of the second part agrees and hereby binds himself to execute and finish complete, in accordance with the drawings and specifications made by John Andrewartha, architect, and signed for identification, a four-story business house on Market, between Third and Fourth streets, on lot belonging to party of the first part, for and in consideration of the sum of twenty thousand and one hundred and twenty dollars. The party of the second part further agrees to furnish all the materials, and also such scaffolding, building stock, tools, and appliances and labor necessary to finish and entirely complete the aforesaid store in accordance with the true intent and meaning of the drawings and specifications. The work shall be pushed to completion as rapidly as practicable, without risk of good work or durability, and shall be finished complete on or before the 30th day of November, 1872, under a penalty of liquidated damages to be ascertained by the architect or whom he may appoint. Such damages to be retained out of any sum the builder may have due him at the completion of the work. In the event of any unnecessary delay the architect shall have full power, with the consent of the party of the first part, to appoint other parties to complete the work; and such expenses so incurred shall be deducted out of any sum the builder may have due him, or recovered from him by the process of law, the architect being sole judge of what constitutes delay. No change of plan or specification shall violate or vitiate this contract; but the value of such changes or omissions shall be ascertained by the architect alone, or whom he may appoint, and the amount so ascertained shall be added to or deducted from this contract, as the case may be; and in no event will any work be considered extra under this contract except the same shall be ordered in writing by the architect, and the value ascertained by him and indorsed as part of this agreement, all such valuations being based on the basis of the builder's price in framing this proposition.
It is further mutually agreed that the architect, John Andrewartha, shall superintend the work, and give such instructions from time to time during the progress as the necessities of the work demand, either verbally, in writing, personally, or by proxy; but in no event will any work be considered as accepted before the inspection (after the completion of the work by the builder) to be made by the architect, and any work then ascertained to be inferior will be deducted for, and liquidated damages assessed against the builder.
The builder shall be responsible for all accidents that may happen during the progress of the work, and shall make good all damages or inferior work, by compensation or renewal, before receiving a final settlement.
The work shall not be sublet without the approval of the architect of the party offered by the builder to do the work, and in all cases of subletting the builder or party of the second part shall be treated with and held responsible for any inferior work done by any sub-contractor, though he may have been accepted by the architect to do the work, and the deduction for such inferior work shall be charged against the party of the second part.
In consideration of the faithful performance of the foregoing terms of this agreement by the party of the second part, the party of the first part agrees and hereby binds himself to pay to the said party of the second part the sum of $20,120.00 for the aforesaid store, under the following conditions:
Payments to be made by installments, payable on the architect's order, as the work progresses to the amount of seventy-five per centum, the balance to be paid in equal sums on negotiable notes, bearing the date of the completion of the building, and due one at ninety, the other at one hundred and twenty days from that date, with bankable rate of interest."
| (Signed) | CHARLES H. PETTET, Trustee. |
| JOHN HEHL. |
By virtue of this contract Hehl, the builder, with his employees, entered upon the lot and undertook the erection of the building; and whilst progressing with the work one of the walls that was being constructed fell upon an adjoining building occupied by the appellee Webb, as tenant, and used by him as a retail book and stationery store, destroying many of his books and injuring other articles of merchandise kept by him for sale. Webb instituted the present action against Robinson and Pettet as the owners of the lot, and against John Hehl, John Andrewartha, Lawrence Diehlman, and Joseph Haley, as their employees, alleging in substance that the walls of the house they were constructing were permitted and caused to fall upon his building by the negligent, careless, and imperfect manner in which they were built by the defendants, their agents and employees, and claiming damages to the amount of five thousand dollars.
The action was discontinued as to Joseph Haley in the court below, and upon the trial of the case a verdict was rendered in favor of the defendants Lawrence Diehlman and John Andrewartha, the architect, and against Robinson and Pettet, the owners of the property, and John Hehl, the contractor, for two thousand six hundred and fifty dollars. Judgment having been rendered on this verdict, they prosecute this appeal.
Robinson and Pettet in their answer deny any negligence in the construction of the work, and in a separate paragraph say that both the builder, Hehl, and the architect, Andrewartha, were competent and skillful men in their calling; that the plans and specifications were well and skillfully drawn, and the building suited for the purpose and location, and there was nothing in the erection of this building on such a lot calculated to create a nuisance; that Hehl was engaged in the occupation of builder, and the contract was made with him as an independent contractor, by which he was to complete the house, furnishing all the materials and labor for the price specified in the contract; that he took possession of the lot for that purpose, and they (the defendants) had nothing to do with the erection of the building.
A demurrer was filed to this paragraph of the answer and sustained by the court below. An instruction was also asked by counsel based upon facts conducing to establish the defense relied...
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