People ex rel. Davis v. Campfield, 150 Mich. 675

150 Mich. 675 | Mich. | 1908

Carpenter, J.

Plaintiff recovered a verdict and judgment in the circuit court against defendant, the obligor in a certain bond executed in conformity with sections 10743-10745, 3 Comp. Laws, for certain sash stiffeners used in constructing the Ann Arbor high school building. Defendant Campfield had the contract to do the carpenter work on said building and it is settled by the verdict of the jury that the stiffeners in controversy were furnished in pursuance of a contract made by him with relator.

First. It is insisted that the trial court erred in not directing a verdict for defendants on the ground that relator was a subcontractor. If he was a subcontractor, it is settled that he has no right of action on the bond in suit. Avery v. Board of Sup’rs of Ionia Co., 71 Mich. 538; People, for use of Winkle Terra-Cotta Co., v. Cotteral, 119 Mich. 27.

Was he a subcontractor ? According to his testimony, which, for the purpose of this case, we must assume to be true, relator agreed to furnish the stiffeners for all the window sashes in the building at $1.50 per window. He was not to install these stiffeners, but he had to make them, and to make them, not in accordance with the specifications for that contract (indeed those specifications which relator had seen merely provided for “Davis or other equal steel stiffeners ”), but to make them in accordance with measurements furnished him by a subcontractor to whom defendant Campfield had sublet the work of putting in the window sash, and to whom Campfield had referred him. It is to be inferred from his testimony that relator would comply with his contract if he furnished stiffeners which conformed to these measurements, though they did not conform to the contract between the principal contractor and the board of education. This circumstance distinguishes the case from Avery v. Board of Sup’rs of Ionia Co., and People, for use of Winkle Terra-Cotta Co., v. Cotteral, supra. In each of those cases the person adjudged to be a subcontractor bound himself to perform in accordance with the original contract, and that is why he was held to be a subcontractor. This is to be necessarily inferred from the opinion in the Cotteral Case, and it is expressly stated in the opinion in the Avery Case, in these words:

“The subcontractor is an under contractor, — one who takes under the original contract, and is to perform in accordance with the original contract

Under this definition, which we think correct, we determine whether a person furnishing material is a subcontractor under sections 10748-10745 by this test, viz., Has he agreed that the original contract shall be.the standard by which the performance of his contract shall be judged ? If he has, he is a subcontractor and cannot recover on the statutory bond. If he has not made that agreement, he is an ordinary materialman and can recover. Under this definition, and according to this test, a manufacturer who agrees to furnish the doors and sashes for a building in accordánce with the terms of the original contract is a subcontractor, while if he merely agrees to furnish them in accordance with certain measurements, he is a materialman. The question may be asked: Will you classify as a materialman or as a subcontractor one who furnishes articles under a contract made by him in entire ignorance of the terms of the original contract, but which does in fact conform precisely to those terms ? In such cases it is true that the fulfillment of his contract is at the same time the fulfillment of the original contract, and thus the original contract becomes the standard by which the performance of his contract is judged. I answer that he is none the less a materialman, because he has not agreed that the original contract shall be the standard, and, so far as he is concerned, its becoming such is a mere incident. Whether or not he is a subcontractor depends on his contract, and not upon a contract of which he is ignorant. He cannot become a subcontractor unless he contracted to become such. But the difficulty suggested by these cases will rarely be encountered, for such cases will seldom arise. Generally speaking, the distinction between the obligation of the subcontractor and that of the materialman, under the test approved in this opinion, will be clear. Almost all contracts for the erection or repair of public buildings impose on the principal contractor an obligation, and this becomes an obligation of a subcontractor, to furnish material or articles which not only conform to the contract, but which will satisfy the honest judgment of the architect in charge, while the material-man discharges his obligation by furnishing articles which conform to his contract. Under the reasoning of this opinion, relator was not a subcontractor. For, as already shown, defendant Campfield could not have rejected the stiffeners merely because they did not conform to the original contract.

Second. It was determined in the lower court that the obligation to furnish the stiffeners in suit was imposed upon defendant Campfield by his contract to do the carpenter work. Defendant complains of various rulings which resulted in this determination. It is a sufficient answer to all these complaints to say that it should be held as a matter of law that his contract did impose that obligation on defendant Campfield. Those stiffeners were, as already stated, distinctly referred to in the specifications for the carpenter work, and it is to be presumed that his contract, which is not a part of the bill of exceptions, required defendant Campfield to do the work mentioned in the specifications.

The judgment should be affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.