Opinion
29267.
DECIDED MARCH 7, 1942. REHEARING DENIED MARCH 27, 1942.
Complaint on bond; from Fulton superior court — Judge Pomeroy. July 22, 1941.
William A. Fuller, for plaintiff.
Kennedy Therrell, James A. Branch, Thomas B. Branch Jr., for defendant.
The petition did not set forth a cause of action. The court did not err in sustaining the general demurrers, and in dismissing the action.
DECIDED MARCH 7, 1942. REHEARING DENIED MARCH 27, 1942.
Pittsburgh Plate Glass Company brought suit against the American Surety Company of New York as surety on a bond given by Henry C. Beck, trading as Central Contracting Company, a general contractor, payable to the State Hospital Authority of Georgia, for the use of the obligee and all persons doing work or furnishing materials under contracts hereinafter set forth, the said bond being conditioned as provided by law, the suit being for the balance alleged to be due the plaintiff for materials and labor furnished under said contracts in the sum of $1219.09, the said Beck not being named as a defendant in the suit by reason of the fact that he is a nonresident, and the suit being brought under the Code, § 23-1708. It was alleged that on May 16, 1939, the plaintiff and the said Beck, doing business as Central Contracting Company, entered into a contract under which the plaintiff agreed to furnish and install the glass and glazing and glass block for Housing Buildings Nos. 4, 2, and 3 at the Milledgeville State Hospital at Milledgeville, Georgia, and under which the said Beck agreed to pay the plaintiff the sum of $17,161 for all glass and glazing furnished and installed complete, and for all glass block, f. o. b. Milledgeville. A copy of the said contract was attached to the petition as exhibit A and made a part thereof, being in the form of a letter from Beck, doing business as Central Contracting Company, accepted by the plaintiff, and providing as follows: "Please enter our order for all of the glass and glazing and glass block for Housing Buildings Nos. 4, 2, and 3 at the Milledgeville State Hospital, Milledgeville, Georgia, and also for all of the glass and glazing for the filtration plant at Fort Benning, Georgia, in strict accordance and compliance with the plans and specifications of Robert Company, architects and engineers for the Milledgeville State Hospital, and in conformity with all the rules and regulations of the Public Works Administration, covering docket No. Ga. 1529-F on the Milledgeville project, and in strict accordance and compliance with the specifications prepared by the War Department for the Fort Benning project. All of the materials furnished under this order shall be subject to the approval of Robert Company, architects and engineers, and is more specifically called for in the specifications under section 5, pages 1 to 14, inclusive, for the Milledgeville work, and also under section 22, pages 1 to 2, inclusive, for the Milledgeville works, and is more especially called for in the specifications prepared by the War Department for Fort Benning, page 65. You are to furnish and secure the approval of the architects and engineers on all glass and glass block for Milledgeville, and you are to furnish and secure the approval of the construction quartermaster on all glass for Fort Benning. This order shall cover a complete job of glass and glazing for Milledgeville and Fort Benning, whether shown on the plans or called for in the specifications or in both. It is understood that we are building Building No. 4 first, No. 2 second, and No. 3 third at Milledgeville, and the work herein contracted for shall be furnished in this sequence. As compensation we are to pay you the sum of seventeen thousand four hundred dollars ($17,400) for all glass and glazing furnished and installed complete and for all glass block f. o. b. Milledgeville, Georgia, freight prepaid, in monthly payments as the material is received and installed, all based on the estimate of the architects and engineers, less 10 per cent. which will be retained 30 days after all of the material herein contracted for is completed and accepted. It is understood that alternates 1 to 7, inclusive, on Building No. 4 and alternates 1 to 8, inclusive, on Buildings 2 and 3 at Milledgeville have been accepted." After such agreement there followed the following signed agreement: "It is understood that two hundred thirty-nine dollars ($239) of the seventeen thousand four hundred dollars ($17,400) applies to the glass and glazing of the filtration plant at Fort Benning, Georgia." It was alleged further: Thereafter, on August 26, 1939, the plaintiff and Beck entered into a supplementary contract for the glass and glazing in the kitchen units of the three buildings, for which Beck agreed to pay the plaintiff the sum of $600, making the total amount of the contracts for all the work in the three buildings $17,761, and to the petition the plaintiff attached a copy of said supplementary contract as exhibit B, which was made a part thereof, but which need not be set forth as its provisions as to the material being subject to the approval of the architects and engineers, the obtaining and furnishing of such approval, the order comprising a complete job, etc. were the same as in the original contract. The petition alleged that for the particular purpose of indicating the character and quality of the material to be furnished, and the manner in which the glass and glazing were to be installed and done by the plaintiff, reference was made by the contracting parties in the subcontracts to the plans and specifications of the architects and engineers and to the rules and regulations of the Public Works Administration, and the plaintiff attached to the petition, as exhibit C, made a part thereof, a copy of the section of the specifications referred to in the contracts, and which provided in item 1 that "All glass required by the contract shall be furnished and installed complete. The glass shall be carefully cleaned, and any glass that has been broken, cracked, scratched, or otherwise damaged by work under this contract shall be replaced with new glass. All glass shall be clean and sound at the time of final inspection." (The rest of the contract related to the description of the glass.) Thereafter, extra items for the three buildings were ordered by the said Beck and furnished by the plaintiff of the value of $391.42, thereby increasing the total amount to $18,152.42. The plaintiff furnished and installed all the glass and glazing and glass block specified in said contracts and all of the extra items above referred to. The said glass and glazing were furnished and installed and the glass block delivered in accordance and compliance with the plans and specifications of the architects and engineers for the Milledgeville State Hospital and the rules and regulations of the Public Works Administration. The said materials and work were duly approved and accepted by the architects and engineers, and said buildings were completed and duly accepted by the State Hospital Authority of Georgia on the dates hereinafter stated, and shortly thereafter and before the filing of this suit a settlement between said authority and the general contractor was effected, and payment in full for said buildings was made by said authority to the said Beck. The Fort Benning job, involving $239, was finished, approved, accepted, and paid for by the said Beck before the filing of this suit, and said payment is duly shown on exhibit D hereinafter referred to. The plaintiff furnished the same materials and did the same amount of work on each of said three buildings, and the amounts paid have been applied equally. The said Beck paid the plaintiff on said contracts the sum of $14,495.16, and the total balance past due and unpaid on the three buildings is $3657.26, of which one-third, or $1219.09, is due and unpaid for materials and labor furnished on Building No. 4, this being the building covered by the bond given by the defendant herein. To the petition the plaintiff attached as exhibit D, made a part thereof, an itemized statement of its account with the said Beck, together with credits thereon, showing a balance due of $3657.26. It was further alleged that Henry C. Beck was the general contractor for the erection of the three buildings, hereinbefore referred to, for the State Hospital Authority of Georgia, and that he gave the said bond, as provided by law, payable to said authority for the use of the obligee and all persons doing work or furnishing materials under said contract, the bond being conditioned as provided by law, and was signed by the said Beck as principal and by the defendant as surety in the sum of $424,411. The contracts for Building No. 4 were completed and the said building was finally accepted by said authority on July 10, 1940. Upon application therefor, as provided by law, the plaintiff was furnished with a certified copy of the said bond, a copy of which was attached to the petition as exhibit E and made a part thereof. The plaintiff has repeatedly demanded payment of said balance and gave the said Beck and the defendant, the American Surety Company of New York, due notice of its intention to file suit, as soon as permitted by the statute, if said payment was not made, and both have failed and refused to pay the same. No suit has been brought on said bond by the obligee or any other person authorized by law to bring such suit or suits. The work of the plaintiff under said contracts was done as follows: About the middle of September, 1939, the general contractor, Henry C. Beck, notified the plaintiff that the buildings had progressed to the point where the work of installing the glass and glazing could be begun. Accordingly, the plaintiff began work on or about September 21, 1939. The work of the plaintiff followed the sequence provided in the contracts, first on Building No. 4, then on Building No. 2, and last on Building No. 3. The last of the glass and glazing (not including extras hereinafter mentioned) on Building No. 4 was done about January, 1940, and the last of the work on Buildings 2 and 3 was done about April, 1940. At the time of the completion by the plaintiff of the glass and glazing in each building there remained to be done a great deal of work by other subcontractors. This included outside painting, inside painting, plastering, floor work, the completion of the installation of plumbing and heating equipment, hardware, etc. This work by other subcontractors required from several weeks to two months or more time in each building. In the course of the work under the general contract between the owner and the general contractor, Beck, many glass which had been installed by the plaintiff were broken, cracked, scratched, or otherwise damaged by these other subcontractors. In all such instances the general contractor, Beck, ordered all such glass replaced by the plaintiff as extras to the contracts, and all such glass the plaintiff replaced as extras, the cost being $391.42, as shown by the statement attached to the petition as exhibit D. The work of the other subcontractors above mentioned not only damaged the glass which had to be replaced as stated, but caused the glass installed to be spotted with paint and plastering and covered with dust and dirt from the other work. The cleaning of the glass under the general contract had to be done after the work of the other subcontractors was finished and before final inspection. Several weeks before the buildings were completed Beck notified the plaintiff that he would expect it to clean the glass installed by it. The plaintiff expressly declined to clean the glass, contending that it was not obligated to do this cleaning under the subcontract between it and Beck. After the replacement at his own expense of the glass which had been broken, cracked, scratched, or otherwise damaged by the other subcontractors Beck cleaned or had cleaned the glass installed by the plaintiff, and thereupon the architects and engineers accepted and approved the work done by the plaintiff, as well as the work of the other subcontractors. Neither the plaintiff nor the general contractor himself could obtain said acceptance and approval until after the cleaning of the glass. The cleaning of the glass in this case, as in all like cases, was the last work done before the final inspection, acceptance, and approval of the several buildings erected by the general contractor. Immediately after the cleaning of the glass, the general contractor, Beck, notified the architects and engineers that the buildings were ready for final inspection, and such inspection was promptly made and the work of the general contractor and that of the several subcontractors, including the plaintiff, was approved and accepted. The plaintiff's contract was with the general contractor, and it had no contractual relation with the architects and engineers, but even if obligated to obtain the approval and acceptance of the architects and engineers of the work done under its subcontract the plaintiff says that it was given no notice or opportunity to do so after the glass was cleaned, and, furthermore, that Beck waived such requirement by himself procuring the approval of the architects and engineers of the work on said buildings, including the work of the plaintiff. The replacing of the broken glass by the other subcontractors, after the plaintiff had completed the installation of the glass specified in its general contract, was not a duty or obligation of the plaintiff, and the general contractor, Beck, ordered this replacement as "extras to the contract," to be paid for by himself, and it was so treated by both the plaintiff and Beck. The plaintiff says that it furnished all materials and did all the work required of it under its subcontract with Beck, that it fully performed and carried out all the terms and requirements of said contract, and that said materials and work were duly accepted and approved by both the general contractor, Beck, and the architects and engineers.
The defendant filed general and special demurrers to the petition, and after its amendment renewed the demurrers. The defendant also filed an answer denying liability and setting up that the plaintiff failed to comply with its contract by not cleaning before final inspection the glass it installed and in not obtaining from the architects and engineers approval and acceptance of such work. The plaintiff demurred generally and specially to the amended answer of the defendant, which demurrers were overruled, and the plaintiff excepted pendente lite. The court sustained the defendant's general demurrers to the petition as amended. In its bill of exceptions the plaintiff assigns error on the judgment of the court sustaining the defendant's general demurrers to the petition as amended, and on its exceptions pendente lite to the judgment of the court overruling its demurrers to the amended answer of the defendant.
The plaintiff entered into a contract with Henry C. Beck, trading as Central Contracting Company, to furnish certain glass, glazing, and glass block and install in buildings which he was constructing for the State Hospital Authority of Georgia at Milledgeville, Georgia, and for the Public Works Administration at Fort Benning, Georgia. According to the petition the work was done, the general contractor, Beck, secured the acceptance and approval of the architects and was paid, and he paid the plaintiff except as to a balance of $3657.26, to recover which suit was brought against the defendant surety, under the provisions of Code § 23-1708, on a bond executed by Beck as principal. The petition attaches as exhibits the relevant portion of the contract under which Beck operated and the subcontract into which he entered with the plaintiff, and the question here presented is whether or not, under the allegations of the petition as amended, the trial court erred in sustaining the defendant's general demurrers and in dismissing the petition.
While the subcontract refers to the plans and specifications mentioned in the contract under which Beck, the general contractor, operated, the plaintiff contends that such reference was merely for the purpose of showing the character, quality, sizes, etc., of the glass and glass block ordered from it by Beck, and that the general contract became a part of the subcontract only for such particular and limited purpose. The defendant contends that the petition and exhibits show that the plaintiff undertook to do for the contractor, in respect to the materials ordered and in the installation thereof, what the contractor was obligated to do for the State Hospital Authority and the Public Works Administration in the construction of the specified buildings, that the plaintiff's contract with the general contractor was an entire one, and that it breached the contract by failing to clean and have clean, before final inspection, the glass it had installed and also to obtain from Robert Company, architects and engineers, acceptance and approval of the work, and, therefore, was not entitled to recover. The plaintiff avers that its subcontract did not require that it clean the glass and that it properly declined to do so at the request of the general contractor, and that, though required originally to obtain from the architects and engineers acceptance and approval of its work, the general contractor waived its obligation by himself obtaining such acceptance and approval.
It appears from the petition that under the subcontract with Beck the plaintiff agreed to furnish specified materials and install the same in certain buildings being constructed by Beck at the Milledgeville State Hospital (as to which it is agreed by both parties that the alleged balance on account applies exclusively) "in strict accordance and compliance with the plans and specifications of Robert Company, architects and engineers for the Milledgeville State Hospital," and that "all of the materials furnished under this order shall be subject to the approval of Robert Company, architects and engineers, and is more specifically called for in the specifications under section 5, pages 1 to 14, inclusive, for the Milledgeville work; and also under section 22, pages 1 to 2, inclusive, for the Milledgeville work; and is more specifically called for in the specifications prepared by the War Department for Fort Benning, page 65. You are to furnish and secure the approval of the architects and engineers on all glass and glass block for Milledgeville, and you are to furnish and secure the approval of the construction quartermaster on all glass for Fort Benning. This order shall cover a complete job of glass and glazing for Milledgeville and Fort Benning, whether shown on the plans or called for in the specifications or in both." (Then followed statement of a lump sum to be paid for all work.) In section 22, item 1, of the general contract, referred to in the subcontract, it was provided: "All glass required by the contract shall be furnished and installed complete. The glass shall be carefully cleaned, and any glass that has been broken, cracked, scratched, or otherwise damaged by work under this contract shall be replaced with new glass. All glass shall be clean and sound at the time of final inspection."
It is the general rule, as stated in 9 Am. Jur. 11, § 11: "It is generally held that where a building contract refers to the plans and specifications and so makes them a part of itself, the contract is to be construed as to its terms and scope together with the plans and specifications. The specifications are but the particulars or details of the plan, and the term `plan' fairly embraces the specifications for the buildings. Where the plans and specifications are by express terms made a part of the contract, the terms of the plans and specifications will control with the same force as though incorporated in the very contract itself. Where, however, the plans and specifications are referred to in the contract for a particular specified purpose, such specifications can serve no other purpose than the one specified, and are foreign to the contract for all other purposes. In the absence of express provision in the contract, the specifications can neither restrict nor extend the scope of the contract to subjects other than those covered by the contract." While the subcontract did not by express terms make the general contract a part of itself, we think that the reference to the plans and specifications of the general contract, though not embracing all of the obligations of the general contractor, does not merely serve the limited purpose of requiring the furnishing and installing specified material, as contended by the plaintiff in error, but comprehends that such material and work, on final inspection, should have the approval of Robert Company, the architects and engineers. It is manifest that no acceptance and approval could reasonably be expected if any of the glass, etc. should be found to be "broken, cracked, scratched, or otherwise damaged" or not cleaned, and the petition shows that after the initial installation of such material the work, because of acts of other subcontractors, was left in a condition which did not merit the approval of the architects and engineers; that the general contractor called upon the plaintiff to clean the glass so that such approval could be obtained, but that the plaintiff, conceiving that it had done in the first instance all that was required of it, refused to put the glass in a condition meriting approval of the designated agency; that it became necessary for the general contractor to remedy this deficiency, and, having done so, to obtain the requisite approval. The subcontract did not merely call for the furnishing and installation of glass, etc., but required that the plaintiff furnish all necessary glass, etc., whether shown in the plans and specifications or not, that is, "a complete job," and as "more specifically called for" in the plans and specifications of the general contract. Under section 22, item 1, any glass called for would have to be glass which, at final inspection, was not found to be damaged or in need of cleaning, and we think that the plaintiff undertook to have such glass, at final inspection, in a condition warranting approval of the architects and engineers and to obtain that approval and acceptance of the work. It is shown, as above stated, that other subcontractors, plasterers, etc., rendered the original work of the plaintiff such that some replacement and cleaning became necessary for final approval and acceptance by the architects and engineers. The plaintiff, after due notice and request by the general contractor, refused to properly clean the glass. It became necessary, therefore, for the general contractor to do what the plaintiff was obligated to him to do, and in so doing he could not reasonably be said to have waived, as contended by the plaintiff in error, any duty resting upon the plaintiff. The contract was plainly an entire one. The petition shows that it was breached by the plaintiff in that it failed to clean the glass and to obtain from the designated architects and engineers the acceptance and approval of its work. Consequently, the plaintiff was not entitled to maintain an action on it against the general contractor or to bring the present suit against his surety on his bond. The trial court did not err in sustaining the defendant's general demurrers and in dismissing the petition as amended.
We have examined all of the authorities cited by both parties, both from the courts of this State and other jurisdictions, but forbear any general discussion as the present case is distinct on its facts, and the legal principles applicable are succinctly stated in the general rule announced in 9 Am. Jur. 11, § 11, hereinbefore quoted.
The above ruling makes unnecessary any discussion as to the plaintiff's assignment of error on its exceptions pendente lite.
Judgment affirmed. Stephens, P. J., concurs.
I think the reference in the subcontract to the plans and specifications had the effect of governing the subcontractor as respects matters which the subcontractor was obligated to do under the terms of the subcontract. I do not think the plans and specifications could enlarge the undertakings of the subcontractor. The question as to whether the subcontractor agreed or was bound to clean the windows and glass must be settled by an interpretation of the subcontract. The question is, what does "a complete job" mean? The reference in a general contract to plans and specifications is an entirely different thing from such a reference in a subcontract. A strong fact supporting this conclusion is that the provision in section 22 of the plans and specifications that all broken glass shall be replaced, etc., can not reasonably be said to obligate the subcontractor to replace it in any and all events, even if it was broken by the negligence of the contractor himself. Yet, if we interpret section 22 as part of the subcontract measuring the duties of the subcontractor, it necessarily must be held to be the undertaking of the subcontractor to replace all broken glass regardless of how it was broken. Further, I do not think that the subcontract required that the subcontractor obtain the approval of his work of installation. I think it means that the subcontractor was to have the glass approved before installation. I think it was the duty of the general contractor to obtain approval of the completed job.