Rosell v. Silver Crest Enterprises
| Decision Date | 05 February 1968 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 436 P.2d 915,7 Ariz.App. 137 |
| Parties | Jose ROSELL and Joe Xavier Rosell, dba Arizona Fence Company, Appellants, v. SILVER CREST ENTERPRISES, a partnership, Appellee. 621. |
| Court | Arizona Court of Appeals |
Jerman & Jerman, by Stanley M. Jerman, Phoenix, for appellants.
Westover, Keddie & Choules, by Tom C. Cole, Yuma, for appellee.
This appeal involves a suit brought by the appellee, Silver Crest enterprises, against the appellants, Phoenix fence contractors who had done business in Yuma, to recover the purchase price of a fence built at appellee's drive-in theatre in Yuma, Arizona.
In August of 1963, appellant proposed and contracted to build a chainlink fence for the appellee. The fence was to be used by the appellee for the purpose of screening out annoying lights from the screen of the drive-in theatre.
The local manager for appellant in Yuma, at the time the contract was entered into, was one Nestor Jiminez. He had been associated in the fence building business with the appellant since 1961. The appellee, prior to entering into a contract, explained in detail to Jiminez the particular purpose of the fence and asked him if it would be possible to screen out the light with a fence. After the appellee had advised Jiminez, as well as Rosell, a partner in the appellant fence company, of the purpose for which the fence was intended, the appellee requested that Jiminez examine the entire area where the drive-in customer's cars were to parked during the threatre program and then to construct a fence that would adequately screen out the annoying and interfering lights. The design, height and construction of the fence was left for the determination of Jiminez and the appellant fence company.
The appellants constructed a 30 ft. high chainlink fence. It was to act as a light screen by the insertion of aluminum slats in the chainlink material. The contract entered into for the construction of the fence called for the payment of $3,345 on completion of the work. The contract further provided: 'All work will be performed in a workmanlike manner and in accordance with standard practice'. The materials to be used in the construction of the fence were purchased from the Hurricane Fence Company by appellants. The Hurricane Fence Company supplied a customer's guarantee which provided: .
During the early part of October, 1963, the fence was completed. At this time, the appellee paid the appellants the agreed upon price for the construction. Within two or three days after completion of construction the fence began to lean. During the time that the fence was falling, the appellee complained to agents of the appellants and requested that they remedy the situation. The appellants installed guy-wires in an effort to strengthen the fence. The installation of the guy-wires did not sufficiently remedy the situation and approximately one week after the completion of the construction, the fence fell.
The appellee then brought suit to recover the contract price of the fence and for damages. The case was tried to the court and a judgment was rendered in favor of the appellee for the contract price plus costs. The judgment was appealed to this Court.
The appellants contend that they cannot be held liable to the appellee because the contract for the construction of the fence only provided that all work would be performed in a workmanlike manner in accordance with standard practice and did not provide that the fence would remain standing after construction and serve the purpose for which it was intended. With this contention we do not agree. When a contractor agrees to build a structure to be used for a particular purpose, there is an implied agreement on the part of the contractor that the structure, when completed, will serve the purpose for which it was intended. See 17A C.J.S. Contracts § 494(2) c. (a), pg. 715. Furthermore, as was pointed out above, the appellants supplied all plans and...
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