Smith v. Bd. Of Educ. Of Parkersburg Dist.
| Decision Date | 18 May 1915 |
| Citation | 76 W.Va. 239 |
| Parties | Smith v. Board of Education of Parkersburg District. |
| Court | West Virginia Supreme Court |
Contracts Building Contract Drawings and Specifications Construction Architect Agency Authority of Architect Change of Plans Liability of Owner Mutual Mistake Right to Relief.
A contract between the owner and builder, for the erection of a house, expressly referred to the drawings and specifications, prepared by the architect and adopted by the owner, and identified by the signatures thereon of the contracting parties, and made them parts thereof. The drawings showed, by printed words in the spaces representing the corridors, that vitrolite wainscoting was to be used therein, but the specifications made no mention of it, and, before bidding for the work, the contractor examined both the drawings and specifications, but was informed by the architect that vitrolite was not to be used, and that he would erase the words relating to it from the drawings, but he failed to do so, and did not advise the owner of what he had told the contractor, who bid for the work as a whole and did not, in terms, either include or exclude vitrolite. He refused to put if in and completed the building without it. The owner then caused it to be put in, and deducted the cost thereof from the amount of the contractor's bid; and he thereupon filed his bill in equity, alleging a mistake in the contract and praying for a reformation of it and for a decree for the balance claimed to be due him. Held:
I. The drawings and specifications are both parts of the contract, and are not inconsistent with each other because they both do not show that vitrolite was to be used in the corridors; one supplements the other. (p. 240).
II. That the architect is only a special agent, whose authority depends upon the terms of his employment, or upon the terms of the contract between the owner and contractor. (p. 240).
III. That the architect had no authority to change the plans and disperse with vitrolite wainscoting in the corridors, without the consent of the owner. (p. 240).
IV. That the owner is not responsible for the mistaken reliance of the contractor upon the supposed authority of the architect, (p. 240).
V. Equity will not reform a contract on the ground of mistake unless the mistake is mutual, or, if not mutual, unless it was known to the other party who has been guilty of inequitable conduct; or unless one party, either by conduct or representations, has caused the other to be misled, (p. 243).
Appeal from Circuit Court, Wood County.
Suit by Charles A. Smith against the Board of Education of Parkersburg District. From decree for defendant, plaintiff appeals.
Affirmed.
Smith D. Turner, for appellant.
L. N. Tavenner and Kreps, Russell & Hiteshew, for appellee.
This suit was brought by Chas. A. Smith to reform a builder's contract made by him with the Board of Education of Parkersburg District, for the erection of a twelve room schcolhouse at the corner of Seventh Street and Park Avenue in the City of Parkersburg, and to recover an alleged balance of $1,387.25 claimed to be due on the contract. A decree was made on the 7th of July, 1914, adjudging that plaintiff was not entitled to any relief and dismissing his bill; and he has appealed.
The minutes of the various meetings of the board of education show that on June 6, 1910, a resolution was passed inviting architects to "submit plans for a 12 room building, subject to the approval of the Board of Education, at the next meeting." William Howe Patton and D. W. Daily, associate architects, submitted plans, and. by a resolution passed on the 17th of June, 1910, their plans were adopted, and they were employed as architects of the building, and by resolution passed August 26, 1910, they were instructed to advertise for bids for the erection of it. Pursuant to their advertisement five separate sealed bids were filed with the board of education, and at a meeting of said board, held on the 12th of September, 1910, the bids were opened and inspected, and the contract awarded to plaintiff, at the price of $29,400.00, his being the lowest bid. The written contract, however, was not signed until November 11, 1910, although dated 12th of September, 1910. The matter in dispute relates to the use of vitrolite wainscoting, which the plans, adopted by the board of education, required to be used in the corridors on the first and second floors, plaintiff claiming that he was informed by Mr. Patton, one of the architects, that it was not to be used and, therefore, he did not include it in his bid, and the board claiming that it did not authorize the architect to alter the plans in that respect, and awarded plaintiff the contract because it understood his bid to include vitrolite wainscoting. Plaintiff refused to put it in, and completed the building without it, The board then caused the corridors to be wainscoted with vitrolite, at a cost to it of $1,387.25, and deducted that amount from plaintiff's bid.
The written contract expressly makes both the drawings and specifications a part of it, hence they must be looked to in order to determine what was comprehended in the contract. Neither the signed agreement nor the specifications expressly mentioned vitrolite, but the drawings or plans show that it was to be used, and they are as much a part of the contract as the specifications, both are identified by the signatures of the contracting parties, and, in terms, referred to as parts of the contract. On the first floor plan, in the space representing the hall, printed in conspicuous letters, are these words: "Note: Walls of corridors is to be wainescotted with vitrolite M'f'g by Meyercord-Carter Co.;"and similar words appear in the space representing the hall on the second floor plan. In a third plan, representing a longitudinal section of the building, with a portion of the roof, the word "vitrolite" is printed in each of the spaces representing the hallways. These words appear in plain, white letters on the blue-prints, and are facsimiles of the original drawings. These prints were examined by the bidders, before making up their estimates and filing their bids. There is no inconsistency between the drawings and the specifications; the omission of the latter to mention vitrolite is supplied by the drawings which show it was to be used. They are a part of the contract, and do not conflict with the specifications, which are simply incomplete in that respect. But it is wholly unnecessary to further discuss a question which the nature of the suit admits. If vitrolite were not included in the terms of the contract, plaintiff would have no standing in a court of equity, for his suit is one to reform that express contract, and equity can entertain it on no other ground.
The theory on which plaintiff has framed his bill is, that the inclusion of vitrolite was either a mutual mistake of...
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