Roland A. Wilson and Associates v. Forty-O-Four Grand Corp.

• Decision Date: 17 November 1976
• Docket Number: No. 2--57610,FORTY-O-FOUR,2--57610
• Citation: 246 N.W.2d 922
• Parties: ROLAND A. WILSON AND ASSOCIATES, Appellant, v.GRAND CORPORATION, Appellee.
• Court: Iowa Supreme Court

Page 922

246 N.W.2d 922

ROLAND A. WILSON AND ASSOCIATES, Appellant, v. FORTY-O-FOUR GRAND CORPORATION, Appellee.

No. 2--57610.

Supreme Court of Iowa.

Nov. 17, 1976.

H. Randy Duncan and Steven K. Scharnberg, of Duncan, Jones, Riley & Finley, Des Moines, for appellant.

Allen Whitfield and David L. Phipps, of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellee.

Heard by MOORE, C.J., and MASON, LeGRAND, UHLENHOPP and McCORMICK, JJ.

McCORMICK, Justice.

This appeal involves an action by an architectural firm for the unpaid balance of its fee. Plaintiff Roland A. Wilson and Associates is an architectural firm headquartered in Denver, Colorado. For convenience Roland A. Wilson will be treated as if he alone were plaintiff. Defendant Forty-O-Four Grand Corporation is an Iowa Corporation which employed plaintiff as architect in connection with construction of a luxury apartment building in Des Moines. During the course of construction, plaintiff was paid all but $6825 of his $27,300 fee. When defendant refused to pay the $6825 balance, plaintiff brought an action on the employment contract seeking recovery of that amount. The trial court found plaintiff failed to prove his performance of his contractual obligations and his entitlement to further payment under the contract. We affirm.

The questions presented for review are whether plaintiff had the contractual duty found to have been breached and whether the evidence supports the judgment.

The terms of the contract are not in dispute. It was entered in April 1966. Plaintiff agreed to prepare plans and specifications for the job and to supervise the work. Regarding supervision, the contract provided:

The architect will make sufficient trips to the job to see that the plans and specifications are followed and will endeavor to guard the owner against defects and deficiencies in the work of the contractors, but he does not guarantee the performance of their contracts. The supervision of an architect is to be distinguished from the continuous personal superintendence to be obtained by the employment of a clerk-of-the-works.

While carrying out his supervisory responsibilities during the course of construction, plaintiff discovered in August 1969 that the windows leaked. Plaintiff testified that in testing one of the windows with a water hose, 'We * * * found out it leaked like a sieve.' Defendant was then notified. In seeking to solve the problem, plaintiff and the contractor agreed that all windows on the building should be caulked. Subsequently this was done by the subcontractor who had furnished them.

In November 1969 defendant wrote plaintiff as follows:

'It appears that a final inspection is due. The only serious problem with the building still is with the windows, and I feel that the manufacturer should have an inspection made to determine if installation is according to specs.

'In view of the contractor requesting settlement, I hope that a final inspection can be made at the earliest possible date. May I hear from you within the next few days.'

After receiving this letter plaintiff made a final inspection. He testified he 'thought the windows were caulked and were holding.' He said he looked at them and they did not appear to be leaking. However, he did not test them.

Plaintiff notified defendant that the construction work passed final inspection. In reliance on this notification, defendant paid the contractor the remaining balance on the general contract.

In about January 1970 defendant discovered that the windows still leaked. When one of the windows was tested from the outside with a water hose, observers on the inside had to jump back to keep from getting wet. Leakage occurred through the window channels and frame. Subsequently defendant installed storm windows in about 90 percent of the north, east, and west windows of the building, at a cost of $8879.23. Tenants were reimbursed $388.65 for damage to furnishings, and some rent was lost.

In June 1970, when plaintiff submitted his bill for final payment of $6825, defendant refused to pay, and the present action was brought. The case was tried at law to the court. The trial court entered judgment dismissing plaintiff's petition, and this appeal followed.

I. Plaintiff's duty. Plaintiff contends the trial court found he breached a duty he did not have. This contention rests in part on an assumption that the trial court's holding made him, rather than the contractor, responsible for the defect in the windows. However, this assumption is incorrect. The trial court did not determine what caused the defect or who was responsible for it. Plaintiff was denied recovery of the balance of his fee on a ground entirely independent of that issue. The court found plaintiff should not have approved the work on the building without a water-test on the windows to see if the leakage problem had been corrected by caulking. The court also found that if plaintiff had water-tested the windows the leakage would have been discovered, plaintiff would not have approved the work, and, as a result, defendant would have held back construction funds to protect itself against the loss subsequently incurred. It was on this basis that the trial court held plaintiff failed to prove performance of his obligations under the contract.

Plaintiff's contention also rests on an assertion that approval of final payment could not have breached any duty imposed on him by the contract.

This assertion presents an issue requiring construction of the contract. Construction of a contract is a determination of its legal effect, a matter of law to be decided by the court. Connie's Construction Co., Inc. v. Fireman's Fund Insurance Co., 227 N.W.2d 207, 210 (Iowa 1975). Moreover, the issue of existence of a legal duty is also a matter of law. Porter v. Iowa Power and Light Company, 217 N.W.2d 221, 228 (Iowa 1974).

This contract imposed two principal duties on plaintiff. One was to prepare plans and specifications. The other was to see that the plans and specifications were carried out by the contractor to achieve the result planned for. The latter duty is at issue here.

Plaintiff acknowledges that his approval of the work was tantamount to issuance of a certificate that the work was complete. Under its financing agreement, defendant was not authorized to make final payment to the contractor without plaintiff's approval of the work. In imposing a duty to supervise the work on the architect, the contract required plaintiff to 'endeavor to guard the owner against defects and deficiencies in the work of contractors * * *.'

When one employs an architect to draw plans...