Fritz Jahncke, Inc. v. Fidelity & Deposit Co.

On Rehearing.

A rehearing was granted on the petition of H. W. Bond & Bro., complaining of our reversing the judgment appealed from and rejecting the demands of H. W. Bond & Bro. for the four claims, namely, $475 for furnishing and erecting hangers, $592.05 for plastering behind baseboards and wainscoting, $556.40 for plastering ceiling beams and column héads in the tankroom, and $721.80 for plastering tile partitions in the basement. We granted a rehearing in favor of John Thatcher & Son, for the reason *611 mainly that, if the claim of H. ,W- Bond & Bro. for plastering behind baseboards and wainscoting should be rejected, the judgment appealed from, in favor of H. W. Bond & Bro., should be reduced, not $592.05, as stated in the decree which we rendered, but $628.72; that is to say, $89.40 for plastering behind baseboards and $539.32 for plastering behind wainscoting. The rehearing which we granted on the petition <jf John Thatcher & Son, however, was not restricted in our order granting the rehearing. We have therefore considered also the two other complaints made in the application of John Thatcher & Son for a rehearing; namely, that the Benevolent Association of Elks (which is the real estate holding company for New Orleans Lodge No. 30, B. P. O. E.) should pay interest at the rate of 5 per cent, per annum on $67,-684.56 from September 14, 1919, to September 11, 1920, and that John Thatcher & Son should have judgment against John Swiler for $26,120.88. We do not find any error in the opinion and decree which we rendered as to those claims; and, for the reasons which we have already given, the judgment appealed from in those respects must stand affirmed.

As to the four claims of H. W. Bond & Bro., our decree, reversing the judgment appealed from and rejecting the claims, was based mainly upon the clause in the original contract, between John Thatcher & Son and the Benevolent Association of Elks, declaring that the architect’s decision on any dispute respecting the drawings or specifications should be final and conclusive. We were wrong in maintaining that the rulings or decisions of the architect should be binding upon H. W. Bond & Bro. in a dispute between I-I. W. Bond & Bro. and John Thatcher & Son. The contract between H. W. Bond & Bro. and John Thatcher & Son contained this stipulation for the settlement of any disputes that might arise between them, viz.:

“Article XXI. In case the contractor and subcontractor fail to agree in relation to any. matters under this contract, these matters shall be referred to a Board of Arbitration, consisting of one person selected by the Contractor and one person selected by the Subcontractor, these two to select a third person; the decision of any two of this Board shall be final and binding on the parties hereto. The party cast in the decision shall pay the cost of said arbitration, but, in the event that each party is allowed something on his claims, they shall share the expenses equally between them.”

With regard to the first claim to be considered — $475 for furnishing and putting in hangers' — the record discloses that John Thatcher & Son recognized that the dispute was to be determined, not by the decision of the architect, but by arbitration, under article XXI of the contract between I-I. W. Bond & Bro. and John Thatcher & Son. When the dispute arose, the parties entered into the following agreement, viz.:

“Whereas H. W. Bond & Bro. have entered into a contract with John Thatcher & Son to do certain work on the Elks Home in the city of New Orleans, La., according to the plans of Messrs. Toledano, Wogan & Bernard, Architects, as is set forth in the above-mentioned contract, a question has arisen as to whether the hangers for the furring to support the wire lath are to be supplied and erected by H. W. Bond & Bro., as a part of their contract, or not.

“H. W. Bond & Bro. claim that the furnishing and erecting of the hangers are not a part of their contract, and John Thatcher & Son claim that they are. In view of the foregoing, both parties agree that H. W. Bond & Bro. shall go ahead and furnish and erect the same, and that the question as to whether they are a part of their contract shall be settled by arbitration, as provided for in article XXI of the Contract between them, dated April 16, 1917.” (Signed by H. W. Bond & Bro., by I-I. W. Bond, and by John Thatcher & Son, by Erwin H. Thatcher.)

John Thatcher & Son afterwards refused to submit the disputes between them and H. W. Bond & Bro. to arbitration; and the disputes had to be decided by the courts.

It is conceded that the contract between John Thatcher & Son and the Benevolent Association of Elks required the contractor *613 to furnish and put in the hangers to support the wire lath. The only question is whether the contract between H. W. Bond & Bro. and John Thatcher & Son required H. W. Bond & Bro. to furnish and install the hangers. The contract specifically required H. W. Bond & Bro. to do the furring and lathing, and to furnish the material therefor, but did not mention hangers. Four witnesses besides H. W. Bond, all reputable plastering contractors, testified that the custom of the trade was for the general contractor to install the hangers, which could be doné at a very slight cost during the pouring of the concrete. The testimony leaves no doubt that subcontractors, in bidding on plastering, never contemplate putting in hangers, but always figure on their being put in by the general contractor, unless it is otherwise stipulated in the contract between the subcontractor and the general contractor. Our conclusion, therefore, is that the claim of H. W. Bond & Bro. for the extra work of putting in the hangers is well founded, and that the judgment appealed from in that respect is correct.

The next item is the claim for $556.40 for plastering behind baseboards and wainscoting. When the dispute arose between H. W. Bond & Bro. and John Thatcher & Son, the latter again acknowledged that the matter should be determined, not by the decision of the architect, but by arbitration, according to article XXI of the contract between I-I. W. Bond & Bro. and John Thatcher & Son. H. W. Bond & Bro. wrote John Thatcher & Son, insisting that plastering behind baseboards and wainscoting was not called for by either the plans or the specifications, and refused to do the work without additional pay. John Thatcher & Son, being bound by the decision of the architect, replied:

“W. H. Bond & Bro., City — Gentlemen: In reply to yours of the 4th instant in reference to plastering behind wainscoting at the Elks I-Iome, would say that we do not agree with you, but it is agreeable to us that you shall proceed and do this work and that any contention regarding same shall be settled under article 21 of our contract.

“Yours very truly, John Thatcher & Son, “Per Erwin H. Thatcher, President.”

Our decision reversing the ruling of the commissioner and of the civil district court as to this claim was based entirely upon the supposition that the decision of the architect was binding upon H. W. Bond & Bro., as well as upon John Thatcher & Son. We observed that the plans and specifications did not indicate that plastering should be done behind baseboards or wainscoting; and we observed that:

“There were quite a number .of experienced plasterers, including Bond, who testified that, for 20 years, it had been the custom to plaster only down to the line of the base or the wainscoting, unless the plans and specification indicated the walls should be plastered to the floor.”

There is therefore no doubt that PI. W. Bond & Bro. bid on the job and entered into the contract to do the plastering at a price which did not include or contemplate plastering behind baseboards or wainscoting; and, since they are not bound by the ruling of the architect on the subject, there is no reason whatever for denying them the extra cost of this work. The judgment of the civil district court, affirming the report of the commissioner, in that respect, is correct.

The claim for $556.40 for plastering ceiling beams and column heads in the tank-room was allowed by the commissioner, and the allowance was affirmed by the civil district court. The plans and specifications called for the demolishing of an old building, except the two walls and ceiling of the tank-room, and required the general contractor, John Thatcher & Son, to protect the retained walls and ceiling against damage by weather. There was no obligation on the part of H. W. Bond & Bro., any more than on the part of any other subcontractor, to protect the retained walls and ceiling from the elements. *615 John Thatcher & Son did protect them for some time, but afterwards neglected them, in consequence of which the old plastering was damaged by the weather, and the walls and ceiling had to be replastered. It is true that H. W. Bond & Bro. had to do all of the work called for by the original contract under the heading “Plastering,” but the protecting or replastering of the walls and ceiling of the old tankroom was not covered by the heading “Plastering,” but was included under the heading “Demolishing,” which H. W. Bond & Bro. had nothing to do with: There is, therefore, no reason why H. W. Bond & Bro. should suffer the loss of the cost of replastering the retained walls and ceiling of the tankroom, which were damaged through the fault or negligence of the general contractor. The judgment of the civil district court affirming the report of the commissioner in that respect is correct.

As to the claim for $721.80 for plastering the tile partitions in the basement, it is not disputed that the specifications called for waterproofing all tile partitions in the basement; and, the fact is, that they were not waterproofed. The testimony shows— and it is not disputed — that, if these tile partitions had 'been waterproofed, they could not have been plastered. The architect decided that the tile partitions in the basement should be plastered, instead of being waterproof. His only authority therefor was a clause in the specifications, referring to walls generally, and saying that they should be plastered; which, in our opinion, did not control the specifications referring particularly to the tile partitions in the basement and requiring that they should be waterproof. The subcontractor who bid on the waterproofing, perhaps, got the benefit of the decision of the architect that the tile partitions in the basement should be plastered instead of being waterproofed; but there is no reason why H. W. Bond & Bro., who bid only on the plastering, should suffer the consequence of the ruling of the architect that the tile partitions in the basement should be plastered instead of being waterproof, as specified in the contract. Our original ruling on this claim was based mainly, if not entirely, upon the erroneous supposition that the decision of the architect, requiring the tile partitions in the basement to be plastered instead of being waterproof, was binding upon H. W. Bond & Bro. The judgment of the civil district court allowing the claim of H. W. Bond & Bro. for the extra cost of plastering the tile partitions in the basement is correct.

The judgment heretofore rendered by this court having been set aside by the granting of a rehearing, the judgment appealed from is now affirmed.