Standard Stamping Co. v. Hemminghaus

• Decision Date: 12 June 1900
• Citation: 57 S.W. 746,157 Mo. 23
• Court: Missouri Supreme Court
• Parties: STANDARD STAMPING CO. v. HEMMINGHAUS et al.

57 S.W. 746

157 Mo. 23

STANDARD STAMPING CO. v. HEMMINGHAUS et al.

Supreme Court of Missouri, Division No. 2.

June 12, 1900.

BUILDING CONTRACT — WARPING OF LUMBER — INSUFFICIENT SEASONING — FAULT OF ARCHITECT — APPROVAL — CHANGE OF PLAN — DAMPNESS UNDER BUILDING — EVIDENCE.

1. A building contract provided that the owner and his architect might reject materials not in accordance with the specifications. The architect rejected certain flooring, and the contractor supplied new flooring, which the owner and architect approved. Held, that the contractor was not liable for the warping of such flooring, due to insufficient seasoning thereof, occurring after the building had been approved and paid for, where the contractor had no knowledge of such defect, and the architect might have easily discovered it by the application of a well-known test.

2. Where the president of a corporation accompanied its architect in inspecting flooring about to be laid by a building contractor, and after both examined it the president asked the architect if that was the flooring he wanted, and the architect replied that it was, and gave his approval thereto, it could not be said, on a subsequent discovery of defects therein, that the architect, in approving such lumber, made a change in the plans without submitting the same to the corporation as required by the contract.

3. On an issue as to whether white-oak flooring was properly seasoned when laid, a jury was justified in finding that it was warped by dampness of the soil under the building, where it had been approved by plaintiff's architect, a mixture of cinders and cement was placed between it and very damp ground, through which moisture could find its way, and an experienced lumber merchant testified that the flooring was seasoned when he delivered it to the contractor.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by the Standard Stamping Company against William F. Hemminghaus and others for breach of a building contract. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This is an appeal from a judgment of the circuit court of the city of St. Louis on a verdict in behalf of defendants. The action was brought on a bond for the performance of a builders' contract, whereby defendants undertook to, and did, build a five-story factory building in the city of St. Louis, on the northwest corner of Second and Chambers streets. The substantive portion of the petition is as follows: "That a certain clause in the specifications, which were part of the contract, provided that: `The first floor, over the cellar, to be laid with best quality white oak, two inches thick, tongued and grooved flooring, laid down level, with close joints, and securely spiked with twenty-penny spikes to each joist.' `Balance of first floor of factory and warehouse to be laid with two inches thick, best quality white oak, dressed to an even thickness, all laid down level, with close joints, and well spiked with twenty spikes to each support. Every joint of floor to be broken, and flooring to be four and one-half inches wide and under.' Another clause required `all materials to be of the best of their respective kinds.' That defendants did erect the buildings so contracted for, but not in accordance with said plans and specifications, by not using the best materials of their respective kinds in constructing the five floors of the building; that in laying the first floor, over the cellar, they did not use the best quality white oak, two-inch thick, tongued and grooved flooring, nor lay the same down level with close joints, and securely spiked with 20-penny spikes to each joist. That said floor was laid while green, has since shrunk and warped, so that it is rough, not level, and has cracks of great width and length; that, in the portion over the cellar, one can see through the floor, and all the balance of the first floor of the factory and warehouse is not laid with two-inch thick, best quality of white oak, dressed to an even thickness, laid level, with close joints, well spiked with 20-penny spikes to each support, but was laid while green, has warped and shrunk, leaving cracks and crevices is rough and uneven, making inclines therein, and rendering it unfit for the purposes of its construction; that on all the first floor the ends project from the general level, a large number of joints are not broken, and many pieces are more than four and one-half inches wide, and not of even two-inch thickness after dressing; that these defects were latent, not visible nor open to inspection, and could not have been known, nor were they known, to plaintiff at the time of laying the floor or completing said building, or making the final payment, but only became visible subsequently; that the building has never been accepted by the owner with knowledge of said defects, nor were the terms of the contract waived." Plaintiff also alleged performance of the contract on its part, and prayed judgment on the bond for $3,000 on account of the alleged breach. The answer to this amended petition admitted the execution of the bond and contract, but denied that the latter is fully set forth in the petition. Affirmatively, the answer averred that under said contract all the work and materials to be furnished by defendant should be so furnished to the satisfaction of the superintending architect of plaintiff, who was by the contract made the agent of plaintiff in the erection of such improvements; that said superintendent was thereby expressly vested with full power and authority to reject any work or material which might not be in accordance with the letter and spirit of the contract, provided he should notify defendants of his objections at the time the work or materials were being furnished; that all work and material were furnished under the superintendence and direction of Gerhard Becker, plaintiff's architect, including all the flooring now complained of; that all the flooring was fully submitted to the inspection and approval of said architect, and only after his express approval was the same incorporated into the building, at great expense; that, after completion of the building, plaintiff formally accepted the same, and the architect fully approved and accepted the entire improvements, and defendants gave up possession thereof in consideration of such approval. The reply admitted the contract as pleaded, but denied the legal effect as averred; also, denied approval of the material in question, and averred that the last payment was made by plaintiff upon promise of defendants to make such additions, alterations, or repairs as would be satisfactory to plaintiff, if it was discovered later that the building was not erected according to contract. The cause was tried before Judge Klein and a jury.

The contract was read in evidence, and contained the clauses set out in the petition, and, among other provisions, the following: "The entire balance of the work to be in accordance with the drawings, plans, elevations, and specifications furnished by the superintending architect, and adopted for said building, which are hereto annexed and made a part of this contract. And said superintending architect shall be the agent of the party of the first part in the erection of the building and improvements herein named. * * * And the said superintendent shall have full power and lawful authority to reject the whole or any part or portion of said material or work which may not be in strict accordance with the letter and spirit of these presents: provided, the said superintendent notifies the parties of the second part of his objections to the work and material at the time same are being furnished. * * * Payments to be made as the work progresses, as follows: $5,000 when the first-floor joist is laid, and rubble masonry is completed; $5,000 when the second-floor joist is laid; $5,000 when the third-floor joist is laid; $5,000 when the fourth-floor joist is laid; $5,000 when the fifth-floor joist is laid; $9,000 when the roof is on; and the balance, of $12,000, when the buildings and all work connected with same is completed. And, after the completion of said building according to contract, if payment of the amount due from party of the first part to parties of the second part be not made within ten days after demand for same, then, in case said parties of the second part shall have recourse to legal process to collect said amount due from said party of the first part, there shall be allowed by the court trying said case a reasonable attorney's fee in favor of parties of the second part. * * * It shall be the duty of said superintendent, upon any payment becoming due said parties of the second part, to give orders on the owner for the payment of same, duly signed and sealed by the parties thereto. * * *" It was further shown that the building has a front on the west line of Second street of 187 feet, by 147 feet on Madison street. Under the corner of the building, for a space of 60 feet each way, was a cellar 9 feet deep, the bottom of which was left in its natural state, except a covering of cinders. Over the whole of this cellar was the tongued and grooved white-oak flooring, and in the corner an office about 12 feet square was partitioned off, and covered with oilcloth. The remainder of the first floor was composed of the ungrooved white-oak plank, dressed on top, 2 inches thick, and nailed to sleepers 5 inches square, which lay next to the unexcavated ground; the spacing between the sleepers being filled with a mixture of cinders and cement. With reference to the oak floor, plaintiff's proof was that George Wiegand, the managing officer, was on the premises every day, as well as the architect; that a shipment of oak flooring was received at the building, which, on examination by the architect, was rejected as not being of the full thickness required; that thereupon defendants...