Staley v. New

• Decision Date: 04 December 1952
• Docket Number: No. 5356,5356
• Citation: 250 P.2d 893,56 N.M. 756,1952 NMSC 102
• Parties: STALEY et al. v. NEW et al.
• Court: New Mexico Supreme Court

Page 893

250 P.2d 893

56 N.M. 756

STALEY et al. v. NEW et al.

No. 5356.

Supreme Court of New Mexico.

Dec. 4, 1952.

Joseph M. Montoya and Edwin L. Felter, Santa Fe, for appellants.

Albert H. Clancy and Samuel Z. Montoya, Santa Fe, for appellee George R. New.

LUJAN, Chief Justice.

On May 28, 1948, Joe E. Staley and Mary G. Staley, his wife, entered into a written contract with George R. New, who undertook and agreed to build a dwelling house for them at a cost of $9,561, at Santa Fe, New Mexico, 'according to plans and specifications prepared and furnished by W. M. Lumpkins,' their agent. These plans and specifications were introduced in evidence as plaintiffs' Exhibits 1, 2 and 3. The same were paid for by George R. New and added to the cost of building the house. These plans did not include a heating system. During the course of construction of the house, Mary G. Staley consulted W. M. Lumpkins regarding the kind of heating system desirable for use in their house and he recommended radiant heating. Shortly thereafter Lumpkins contacted Ray Harmon, Jr., of the Harmon Corporation in Albuquerque, New Mexico, and requested him to draw plans and specifications for a radiant heating system. In compliance with said request Mr. Harmon drew the same and forwarded them to him by mail. These plans and specifications were likewise paid for by Mr. New and also added to the cost of the house.

On June 25, 1948, Mr. New, by written contract, sublet the installation of the heating system in the house to C. B. Bunn, d/b/a American Heating and Ventilating Company, who, in consideration of $1,309, agreed to furnish all material and perform all the labor required by said plans and specifications.

A trial to the court without a jury resulted in findings from which it was concluded that the plaintiffs were not entitled to recover damages from defendants. Judgment was entered against the plaintiffs and this appeal followed.

For convenience, Joe E. Staley and Mary G. Staley, plaintiffs-appellants, will be referred to as the appellants; the defendants-appellees, George R. New, as the general contractor; C. O. Bunn, as the subcontractor; and Ray Harmon, Jr., d/b/a the Harmon Corporation, as the architect for the heating system.

Shortly after appellants moved into their new home, they discovered that the heating system did not function correctly, in that it did not heat the house adequately. Complaint was made to both Mr. New and Mr. Bunn relative to the existing defect. Although several efforts were made to adjust the same it never did work and it was then that appellants sought the aid of the court, seeking damages of $5,500 against appellees for breaches of contract and warranty.

At the outset, it may be said that as to the architect, the record discloses no contractual relations between the appellants and said architect. Upon this phase of the controversy the trial court concluded as a matter of law: 'That there was no privity of contract between the plaintiffs and the defendant 'The Harmon Corporation." It is the general rule of law that one who is not a party to a contract cannot maintain a suit upon it.

The appellants contend that the filler between the pipes should have been thoroughly dried pea gravel and that pumice was not a proper material to be used in view of the fact that it is an insulating material which diffuses the heat. It is clear from the evidence that the subcontractor submitted his bid based upon a copy of the plans and specifications prepared by the Harmon Corporation at the instance and request of W. M. Lumpkins, appellants's agent, and delivered to him by the general contractor. These plans and specifications were introduced in evidence as appellants' Exhibit 4. That portion of the specifications (Exhibit 4) calls for either thoroughly dried pea gravel or loose pumice to be installed between the pipes. It is also clear that at the time the subcontractor submitted his bid he had in mind the furnishing of either dried pea gravel or loose pumice. Manifestly the subcontractor was given the option either to use pea gravel or loose pumice; and this being so, the use of either would be a compliance with the contract. Upon this phase of the controversy the trial court found:

'That the defendant, C. O. Bunn, complied with the terms of the written agreement with the defendant, George R. New, and installed the materials in a workmanlike manner according to the plans and specifications prepared by the defendant, Harmon Corporation, and in accordance with the changes in the said plans and specifications as were made at the request of the plaintiffs through their architect and approved by him.

'That defendant C. O. Bunn complied with the terms of the written agreement with George R. New and installed the materials in a workmanlike manner according to the plans and specifications prepared by the defendant Harmon Corporation.'

It also found:

'That the defendant, George R. New, in completing the installation of the radiant heating system, did comply with the plans and specifications as prepared by the defendant, Harmon Corporation, and as submitted to him by the plaintiffs, through their architect, W. M. Lumpkins, and that the materials used in the installation of the same were of such quality and kind as called for by the plans and specifications; that the labor used was proper and performed in a workmanlike manner as required by the terms of the agreement with the plaintiffs herein, and in full compliance with the plans and specifications prepared by W. M. Lumpkins and the defendant, Harmon Corporation, the same being plaintiffs' trial Exhibits 1, 2, 3 and 4 respectively.'

The only duty devolving upon the general contractor and the subcontractor was that they...