222 F. 737 | 5th Cir. | 1915
Lead Opinion
Omitting mention of details not necessary to be considered in reviewing the ruling of the trial court which is assigned as error, the petition alleged, and there was evidence tending to prove, the following facts:
The plaintiff in error contracted with the defendant in error the city of New Orleans to build for it a bridge of the bascule or lift type, strictly in accordance with plans and specifications furnished to the city by bridge architects employed by it alone. After the plaintiff in error had, in pursuance of the terms of the contract and under the supervision of the city engineer, carried the work to a point nearing the completion thereof, the bridge collapsed and fell while it was being lowered from a vertical to a horizontal position upon the request and order of the official of the city who had the supervision for it of the construction work. This collapse of the bridge was not due to any fault or omission of the plaintiff in error, its agents, servants, or employés, nor to any defective material used therein, nor to any nonobservance by it of any requirement'of the contract, but was due altogether to the plans and specifications, which, as above stated, the contract required the builder strictly to observe and follow, being fundamentally defective and insufficient. That contract contained the following provisions:
“14. Damage to Bridge. — The contractor shall he responsible for all damages the bridge might suffer from fire, storm, or whatsoever cause during erection or after completion until accepted by the city engineer and the commissioner of public works. * * *
“20. Maintenance. — The contractor guarantees, at his expense, to maintain to the satisfaction of the commissioner of public works, in good condition, for a period of one (1) year from the day it is accepted by the city engineer, all of the work executed under- the contract.”
During the progress of the work, before the collapse of the bridge, payments had been made thereon as provided for in the contract; but the proportion of the work contracted for which had then been done was considerably greater than- that which the amount that had
‘'However, there is due the plaintiff an amount of §2,551.93 for matters arising after the failure of the bridge, and I will direct a verdict for that amount.”
Immediately following its recital of this statement, the bill of exceptions states:
“And thereupon, and before the said jury retired, immediately after said charge, counsel for the plaintiff then and there, in the presence of the jury, excepted and reserved this its bill of exceptions, which was then and there noted.”
The counsel for the defendants in error suggest that the exception which was reserved was insufficient to present for review any action ol’ the trial court, in that it failed to direct the attention of the court to any particular ruling sought to be made the subject of objection. There is no merit in this suggestion. Manifestly the exception reserved was directed, not to what the court said in explanation of the ruling it was about to make, but to the action of the court in so disposing of the motion submitted as to deny the plaintiff’s right to recover anything for work done under the original contract. The exception sufficiently directed the attention of the court to the ruling made on the motion for a directed verdict, and it duly presents that ruling for review. E. H. Rollins & Sons v. Board of Commissioners, 80 Fed. 692, 26 C. C. A. 91.
“Art. 2758. Accidental Destruction Before Delivery. — When the undertaker furnishes the materials for the work, if the work be destroyed, in whatever manner it may happen, previous to its being delivered to the owner, the loss shall be sustained by the undertaker, unless the proprietor be in default for not receiving it, though duly notified to do so.”
This article provides when the loss resulting from the destruction of a work before it has been completed and delivered is to fall on the undertaker or builder. ' Another article of the same Code (article 2762) provides when the loss due to a building falling to ruin after its completion and delivery is to fall upon the builder. It is to be noted that neither of these provisions contains language which makes it plain that it was a part of the legislative purpose to subject the builder to the loss occasioned by a destruction of the work, due to a cause for which he was not responsible and of which the owner alone had control. In the framing of each of these articles use was made of provisions on the same subjects contained in the Code Napoléon (articles 1788, 1792). They were redrafted and somewhat changed in phraseology before being incorporated in the Louisiana Civil Code.
It is not without significance that a change made in the redrafting of the last-mentioned article consisted in its omission of a clause found in the corresponding article of the Code Napoléon — one making the contractor responsible for the loss resulting from the fall or collapse of a building as a result of a defect in its foundation — the effect of which would have been to make the builder bear a loss due to a cause for which he may not have been at all responsible, and for which the owner may have been solely responsible. The difference between the last-mentioned provision and the corresponding one of the. Code Napoléon has been noted in Louisiana decisions. Fremont v. Harris, 9 Rob. (La.) 23; Powell v. Markham, 18 La. Ann. 581. To say the least, the history of the enactment of that provision, which is cognate with the one which is claimed to have a bearing upon the decision of the instant case, contains some evidence of a lack of intention on the part of the Legislature to cast upon a builder the loss consequent upon the destruction of his work due to a cause for which he was in no way responsible, and for which the owner was solely responsible.
But, without regard to this consideration, we do not think that with any plausibility it can be contended that the Legislature, in using the • words, “if the work be'destroyed, in whatever manner it may happen, previous to its being delivered to the owner,” had in contemplation a destruction of the work due to the owner’s fault while it is still incomplete in the hands of the contractor. It seems to be more rea
The provision relied on evidences an intention of the Legislature to go SO’ far as to cast upon the builder a loss occasioned by a destruction of the work before delivery, though such destruction was without fault on his part, or is unexplained, but by no means evidences a purpose to cast upon one party to a building contract a loss for which the other party to that contract is solely responsible. More definite language than that found in the provision in question would be required to warrant the imputation to the Legislature of such a purpose. We do not think that it would be more permissible to give to che provision in question the meaning which is sought to be attributed to it than it would be to construe section 14 of the contract, above set out, as having the effect of enabling the city willfully to cause the destruction of the bridge before its completion, and then hold the contractor responsible for the damages so sustained.
While there has not come to our notice any decision of a Louisiana court specifically to the effect that the article of the Civil Code which is invoked does not make a contractor liable for a failure of his work due to the badness of the plan made for it by another, and which the contractor was required to follow, decisions which have been rendered to the effect that a builder is not responsible for results attributable to defects in the architect’s plans (Hebert v. Weil, 115 La. 424, 39 South. 389; Mahoney & Co. v. St. Paul’s Church, 47 La. Ann. 1064, 17 South. 484) indicate that the opinion has not heretofore been entertained that the statute in question has the meaning now imputed to it. And we are not of opinion that it has that meaning.
It cannot be supposed that such contracts would be matters of such common occurrence — that owners would be able to secure them, or that contractors could be found who would be willing to subject themselves to such risks of loss due to no fault on their part — if it was understood by the parties that the making of such contracts involved such results; and there is abundant authority for the assertion that such transactions do not have such consequences. We understand it to be well s'ettled that by the making of such a contract as the one involved in this case the owner impliedly warrants the sufficiency for the purpose in view of the plans and specifications which the contractor is required to follow, and subjects himself to liability to the contractor for loss or damage entailed upon the latter in consequence of a fatal deficiency or fault in the plans or specifications not discoverable by him by the exercise of ordinary diligence "upon inspection. Bentley and Others v. State, 73 Wis. 416, 41 N. W. 338; MacKnight Flintic Stone Co. v. Mayor, 160 N. Y. 72, 54 N. E. 661; Murphy v. National Bank, 184 Pa. 208, 39 Atl. 143; Filbert et al. v. Philadelphia, 181 Pa. 530, 37 Atl. 530; Continental & C. T. & S. Bank v. Corey Bros. Const. Co., 208 Fed. 976, 126 C. C. A. 64; Bush v. Jones, 144 Fed. 942, 75 C. C. A. 582, 6 L. R. A. (N. S.) 774; Sickels v. United States, 1 Ct. Cl. 214; 6 Cyc. 63.
A contractor’s right to recover for material and labor furnished under such a contract as the one involved in this suit is not to be denied when he shows a performance of all that he undertook to do, except in so far as performance was rendered impossible by a fatal fault of the plan he was required to follow, the responsibility for which fault and for the failure to discover it in time to avoid the consequent loss to the contractor was solely that of the owner or his architect or supervisor.
The conclusion is that the court was in error in making the ruling complained of. It follows that the judgment should be reversed, and the cause be remanded for a new trial; and it is so ordered.
Dissenting Opinion
(dissenting). In addition to the reasons assigned by the District Judge for giving an affirmative instruction in favor of the. defendants in error, it is thought by the writer that the instruction was proper for the reason that it was justified by the very terms of the following provision of the contract, entered into between the. bridge company and the city of New Orleans. Section 14 reads as follows:
“Damage to Bridge. — Tlie contractor shall be responsible for all damages the bridge might suffer from fire, storm, or whatsoever cause during erection or after completion until accepted by the city engineer and the commissioner of public works.”
By this contract the parties are bound just as they have bound themselves. Its language is plain and unambiguous. By its terms the contractor bound itself, without reservation and with no provision for dispensation, to be responsible for all damages the bridge might suffer from any cause whatsoever during its erection or after completion until accepted by the proper authorities. During its erection, and therefore before acceptance by the city engineer and the commissioner of public works, the bridge collapsed without negligence on the part eitherof the city or of the bridge company. It is said that the collapse was due to defective plans and specifications furnished by the city’s architect. Let that view of the case be granted, and it still remains true that the bridge company is responsible, unless the court interpolates in the contract a provision which the parties, with the plans and specifications before them, failed to do. To relieve the bridge company of the responsibility which it voluntarily assumed, the court must make a new contract for the parties, by inserting at the end of section 14 the following, or equivalent, words: Except damages arising from defective plans and specifications. It is quite clear that the court is without power to effect such a change. The contract must stand, with its benefits and burdens, as the parties themselves have made it. And this view of the law is supported by the highest authority. The case of Dermott v. Jones, 2 Wall. 1-9, 17 L. Ed. 762, is so directly applicable to the case before the court that an apology for a lengthy quotation from it is not deemed necessary. In the Dermott Case the pertinent facts were as follows:
Jones, a mason and housebuilder, contracted with Miss Dermott to build a house Cor her, the soil on which the house was to be built being her own.. The house was to be built according to very detailed plans and specifications, which the “architect” of Miss Dermott had prepared, and which were made part of the contract. In the contract, Jones covenanted that he would procure and supply all matters requisite for the execution of the work “in all its parts and details, and for the complete finish and fitting for use and occupation of all the houses and buildings, and the several apartments of the house and buildings, to he erected pursuant to the plan of the work described and specified in the said schedule, and that the work, and the several parts and parcels thereof, shall be executed, finished, and ready for use and occupation, and. be delivered over, so finished and ready,” at a day fixed. Jones built the housir according to the specifications, except in so far as Miss Dermott had com. pelle.d him, according to his account of things, to deviate from them. Owing, however, to a latent defect in the soil, the foundation sank, the building became badly cracked, uninhabitable, and so dangerous to passers-by, that Miss Dermott was compelled to take it down, to renew the foundation with artificial "floats,” and to rebuild that part of the structure which had given away. This*744 she did at a large expense. As finished on the artificial foundations the building was perfect.
With the foregoing facts in view, it was said by Mr. Justice Swayne, as the organ of the court:
“The defendant in error insists that all the work he was required to do is set forth in the specifications, and that, having fulfilled his contract in a workmanlike maner, he is not responsible for defects arising from a cause of which he was ignorant, and which he had no agency in producing. Without examining the soundness of this proposition, it is sufficient to say that such is not the state of the case. The specifications and the instrument to which they are annexed constitute the contract. They make a common context, and must be construed together. In that instrument the defendant in error made a covenant. That covenant it was his duty to fulfill, and he was hound to do whatever was necessary to its performance. Against the hardship of the case he might have guarded by a provision in the contract. Not having done so, it is not in the power of this court to relieve him. He did not make that part of the building ‘fit for use and occupation.’ It could not be occupied with safety to the lives of the inmates. It is a well-settled rule of law that, if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him. Paradine v. Jayne, Alleyn, 27; Beal v. Thompson, 3 Bosanquet & Puller, 420; Beebe v. Johnson, 19 Wend. (N. Y.) 500, 32 Am. Dec. 518; 3 Comyn, Digest, 93. The application of this principle to the class of cases to which the one under consideration belongs is equally well settled. If a tenant agree to repair, and the tenement be burned down, he is bound to rebuild. Bullock v. Dommett, 6 Term, 650. A company agreed to build a bridge in a substantial manner, and to keep it in repair for a certain time. A flood carried it away. It was held that the company was bound to rebuild. Brecknock Company v. Pritchard, Id. 750. A person contracted to build a house upon the land of another. Before it was completed it was destroyed by fire. It was held that he was not thereby excused-from the performance of his contract. Adams v. Nickols, 19 Pick. (Mass.) 275, 31 Am. Dec. 137; Brumby v. Smith, 3 Ala. 123, is to the same effect. A party contracted to erect and complete a building on a certain lot. By reason of a latent defect in soil the building fell down before it was completed. It was held (School Trustees v. Bennett, 27 N. J. Law, 513, 72 Am. Dec. 373, a case in New Jersey, cited by counsel) that the loss must be borne by the contractor. The analogies between the case last cited and the one under consideration are very striking. There is scarcely a remark in the judgment of the court in that case that does not apply here. Under such circumstances equity cannot interpose. Gates v. Green, 4 Paige (N. Y.) 355, 27 Am. Dec. 68; Holtzaffel v. Baker, 18 Vesey, 115. The principle which controlled the decision of the cases referred to rests upon a solid foundation of reason and justice. It regards the sanctity of contracts. It requires parties to do what they have agreed to do. If unexpected impediments lie in the way, and a loss must ensue, it leaves the loss where the contract places it. If the parties have made no provision for a dispensation, the rule of law gives none. It does not allow a contract fairly made to be annulled, and it does not permit to be interpolated what the parties themselves have not stipulated.” 2 Wall. 7, 8, 17 L. Ed. 762.
See, also, United States v. Gleason, 175 U. S. at page 602, 20 Sup. Ct. 228, 44 L. Ed. 284.
In the judgment of the writer, the ruling of the court in Dermott v. Jones is decisive of the present case, and he is therefore of the opinion that the judgment should be affirmed. The foregoing views are strongly supported by the case of Lonergan v. San Antonio Trust Company, decided by the Supreme Court of Texas and reported in 101 Tex. 63-81, 104 S. W. 1061, 106 S. W. 876, 130 Am. St. Rep. 803.