Wing & Bostwick Co. v. United States Fidelity & Guaranty Co.

• Decision Date: 08 November 1906
• Docket Number: 92.
• Parties: WING & BOSTWICK CO. v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: U.S. District Court — Western District of New York

150 F. 672

WING & BOSTWICK CO. v. UNITED STATES FIDELITY & GUARANTY CO.

No. 92.

United States Circuit Court, W.D. New York.

November 8, 1906

Sebring Cheney & Rogers, for plaintiff.

Herendeen & Mandeville, for defendant.

HAZEL District Judge.

This is an action to recover upon an indemnity indemnity bond executed by the National Concrete Steel Company, as principal, and the defendant, the United States Fidelity &amp Guaranty Company, as surety (hereinafter referred to as the steel company and the surety, respectively), to one D. J Calkins. The surety bound itself to indemnify the obligee for damages resulting from a breach of a contract for the erection of a three-story reinforced concrete building upon the lands of the plaintiff, the Wing & Bostwick Company, at Corning, N.Y. Contemporaneously with a contract between Calkins and the plaintiff for the erection of said building, the former entered into a subcontract with the steel company for its construction; the contract price being $12,000, which amount was $1,000 less than the amount named in the first-mentioned contract. The bond upon which this action is brought was delivered to the plaintiff with an assignment from Calkins, the original contractor, indorsed thereon.

On July 20, 1903, after the construction of the building had been commenced by the steel company, another assignment of the surety bond, which in terms was absolute on its face, was delivered by the obligee to the plaintiff. The work was commenced in the month of May, 1903. Thereafter, on July 16th, the architect of the work, acting under the contract, certified that on account of the failure or omission of the steel company to prosecute the work with promptitude there was a default in the contract which justified its termination by the owner. On July 18th the architect, acting for the original contractor and the owner, took possession of the building, but, pursuant to a subsequent written arrangement between the original contractor and the steel company, in which the plaintiff acquiesced, the steel company continued the contract and the performance of the work until on or about October 1, 1903, when it finally abandoned the same. The original contractor then engaged the International Fence & Fireproofing Company to complete the unfinished building. Upon completion of the roof the false work which supported the weight of the concrete was removed, and fires were started to dry the concrete material.

On the night of December 15th, however, the building suddenly collapsed; the roof and rear wall falling down. The plaintiff claims that such collapse was directly due to the failure of the steel company to put in place in the rear wall of the building two pilasters and two beams which were specified in the exhibit drawings and plans, and its omission to properly reinforce the concrete material; while the defendant contends that the principal cause of the collapse was the negligence of the superintendent of the fireproofing company in constructing the roof in freezing weather, and then removing the supports and thawing out the frost in the concrete, thereby producing a plastic condition of the same. The facts bearing upon the direct cause of the breakdown are conflicting. Without deeming it necessary to discuss the different technical theories assigned therefor by the expert witnesses, it may be stated that in my judgment primarily the roof caved in owing to the frost in the concrete which prevented it from setting, and that the falling down of the roof caused the rear portion of the concrete building to precipitate, which probably would not have occurred if the pilasters and beams, together with the proper reinforcement in that portion of the building, had been supplied as specified in the plans and specifications. It may be fairly presumed, from the absence of the pilasters and beams, together with the reinforcing means, and the delay in the performance of the work, that the steel company was primarily to blame for the mishap. The rear wall would have materially resisted the strain of the roof if the supporting means mentioned had not been omitted.

In view of the circumstances, the work of completing the building proceeded as rapidly as the situation permitted; the concrete roof being built between November 25th and December 1st. Johnson, at that time superintendent of the work, was a competent and experienced builder. The precaution and care exercised by him to protect the concrete material from the frost cannot safely be challenged. Although the construction of the roof was commenced in cold weather, the temperature being from 20 to 36 degrees, the cement when applied was in a plastic condition for setting, and, the building of the roof having been started, a rapid completion of the same was necessarily required. That the weather became conspicuously colder as the work progressed, and the probability that the concrete froze after being applied to the roof, cannot be persuasively considered to establish negligence in the construction of the roof, in view of the showing by plaintiff that ordinary diligence and care was used to cause the concrete to set. It being my conclusion that the negligent construction of the rear wall and the inexcusable delay in completing the building by the steel company was the indirect cause of the collapse of the building, the other propositions presented on argument may be considered.

Defendant contends that the bond in question was a special guaranty and therefore not assignable before a cause of action upon it had arisen. In support of this contention the point is made that, under plaintiff's pleadings and bill of particulars, the breach of the contract is not asserted until October 1, 1903, which was after the assignment of the bond and the time when the work was actually abandoned. The bill of particulars is sufficiently specific to indicate a breach prior to the last assignment. The contract emphatically declares that the work was to be performed under the direction of the architects, whose decision as to the proper construction of the drawings and specifications was to be final. ...