112 P. 820 | Utah | 1911
Lead Opinion
In May, 1902, tbe government of tbe United States entered' into a written contract with tbe appellant, tbe Campbell Building Company, to construct a government building at Salt Lake City, in accordance with plans and specifications prepared by tbe supervising architect. About twelve pages of typewriting of such plans and specifications relate to tbe plumbing of tbe building, in which are enumerated and described in detail tbe kind, character, quality, grade, etc., of each fixture and article to be furnished and used for such purpose. Such portion of tbe plans and specifications also contained a stipulation that “tbe required material and fixtures must in each case be in strict accordance with tbe specifications, and of tbe best quality and grade found in tbe market,” and that “tbe contractor immediately after tbe award of tbe contract is to furnish for approval of tbe supervising architect tbe name and address of tbe manufacturer and catalogue number of tbe following named fixtures be proposes to use: Water-closets, urinals, slop sink, wall hydrants, fire hose rack, gate valves, pressure reducing valve,
It was made to appear without substantial conflict in the evidence, and was testified to by the superintendent of construction of the building, whose duty it was on behalf of the government to inspect the material and fixtures that went into the building and to see that they were in accordance with the plans and specifications prepared by the supervising architect, that the fixtures and1 articles furnished by the Midgleys and taken to the building by them and which were condemned and rejected by the order of the supervising architect “were in accordance with the plans, details, and specifications prepared by the supervising architect,” and “were in quality and character in every way equal to the requirements of the plans, details, and specifications,” and that they fell short in the “circumstance” only that they were supplied by and purchased from Crane & Company instead of Clow & Sons, and that such facts were reported by him to the supervising architect. It was also shown by the admis
It was testified to by the Midgleys that at the time of the making of their contract with the Campbell Building Company they had no knowledge or notice that the latter had submitted to the supervising architect the name of Clow & Sons as the manufacturer. The president of the Campbell Building Company testified that such fact was made known to them prior to the making of the contract. But it is beyond dispute that in the written contract finally entered into
The appellant requested the court to charge that under’ the terms of the contract the Midgleys were not only required to furnish material and to do the work in accordance with the plans and specifications, but that the work and material were also required to be to the satisfaction of the supervising architect, and that it was “their duty so to do the work, and so to furnish the materials,” regardless of the question of whether the architect in condemning and rejecting the goods furnished by the Midgleys acted unreasonably; and, if they so failed and refused to furnish and install the
In view of the issues submitted to the jury and of the evidence adduced, we think no error was committed. The court correctly charged that the contract between the Midgleys and the Campbell Building Company did
It, however, is urged by the appellant that because of the clause in the contract whereby the Campbell Building Company agreed to pay the Midgleys the sum of money therein specified in consideration of their' “completely and faithfully executing the aforesaid work, and by and at the time mentioned, and to the full and complete satisfaction of the supervising architect and superintendent of construction,” the supervising architect could properly reject or condemn the fixtures furnished and offered to be installed by the Midgleys, regardless of whether his action in so doing was wise or unwise, just or unjust, reasonable or unreasonable, capricious or otherwise. In other words, because of such clause in the contract obligating the Campbell Building Company to pay in consideration of the Midgleys executing the work to the “satisfaction of the supervising architect and superintendent of construction,” it is urged that the supervising architect had the choice to accept the fixtures, or to reject them, if he was not satisfied, regardless of whether they were or were
As already observed, the case here tried and submitted to the jury was upon the appellant’s counterclaim wherein it sought to recover damages from the- Midgleys on the ground of their alleged breach of the contract. The case submitted to the jury is not one where the Midgleys are seeking to recover payment for goods furnished or work done by them which were not to the satisfaction of the appellant or of the supervising architect or the superintendent of construction. Conceding that under the clause referred to in the contract the Campbell Building Company was not obligated to pay for the execution of the work if it was not to the satisfaction
Furthemore, it does not appear to us that there is anything particularly sentimental or fanciful, or tasteful, about water-closets, urinals, slop sinks, or basin faucets, especially in a public building. It is chiefly requisite that they be sanitary, useful, suitable, and neat. The chief or controlling factor in the contract is not that the goods should satisfy the fancy, taste, or aesthetic sense of the supervising architect, or his mere whim or caprice in respect of their fitness or utility. The important thing 'in that regard is that the work was required to be done and the goods and fixtures furnished to be “in each ease in strict accordance with the plans and specifications and of the best quality and grade found in the market,” and the fixtures and goods to be of the kind, character, grade, quality, and description enumerated and described in the plans and specifications. The supervising architect was not dissatisfied ^because the goods and fixtures furnished by the Midgleys were not in strict accordance with such plans and specifications, or were not of the best quality and grade found in the market, or were not of the same kind, grade, character, and quality as theretofore submitted to him by the Campbell Building Company and approved by him. He was dissatisfied on the sole ground that the fixtures were purchased from Crane & Co., and not from Clow & Sons, and for that reason arbitrarily condemned and rejected them. At least there is much evidence to support a finding to that effect. If in such case the Midg-leys, who had not agreed to furnish goods manufactured or
We are of the opinion that the judgment rendered on the verdict finding the issues on the counterclaim in favor of the plaintiff and against the defendant, no cause of action, ought to be affirmed, with costs to the respondent. It is so ordered.
Concurrence Opinion
I concur in the result. My first impressions were very strong that, in view of the whole record, the case at bar falls within that class where a contractor had agreed to furnish materials in accordance with the choice or direction of a person named in the contract, and where the choice of that person, although duly made, had been ignored. My associates, after a very careful consideration of the case, however, have arrived at a different conclusion. A just deference to their judgment induces me to yield my views to theirs. If the opinion of my Brethren is, however, to be construed to the effect, as I fear it may be, that a person in no case can recover as damages for breach of contract the difference between the cost of an article agreed to be furnished in accordance with the choice of a person agreed upon and some other article of the same kind just as good or better simply because the latter article is arbitrarily rejected by the person aforesaid upon the sole ground that the former was arbitrarily or for any reason chosen in preference to^ the latter, I must withhold my assent. I think that where A. agrees to furnish B. an article of a certain make, or one that is or may be sold only by a particular person or firm, B. has