Veitch v. Jenkins

107 Va. 68 | Va. | 1907

Whittle, J.,

delivered the opinion of the Court.

The defendant in error, L. H. Jenkins, entered into a written agreement with a contractor, George W. Lambert, by which the latter engaged to purchase material, employ labor and superintend and erect for the former a building in the city of Richmond for a book factory, in accordance with certain plans in hand; to use his best efforts to secure material and labor at the lowest cost; and to render his employer a true account thereof. The estimated cost of the building was $12,110, which amount was not to be exceeded without the consent of the ownei', and Lambert guaranteed that the workmanship should be first class and satisfactory in every respect; while Jenkins agreed to pay the net cost of material and labor together with a commission of $1,300 to Lambert.

The plans called for a granolithic floor in one of the rooms of the building, and the contractor employed Yeitch to supply the material and lay the floor. The work was alleged to have been negligently done; and in an action of trespass on the case against Yeitch, Jenkins recovered a verdict and judgment for $1,500, which judgment is the subject of review.

We are of opinion that the case turns upon the character of the contractual relation between Lambert and Jenkins. If Lambert was an independent contractor, it follows that there was no such privity between his employee, Yeitch, and Jenkins as would render the former answerable to the latter in damages for defective work.

In its essential facts, the case is not distinguishable from that of Emmerson v. Fay, 94 Va. 60 26 S. E. 386. In that case it was held that, “A person who is skilled in the performance of a particular kind of work, and who, on account of his skill is employed to do a piece of work, without restriction upon the means to be employed in doing the work, and who employs his own labor which is subject alone to his control and direction, and undertakes to do the work either according to his own ideas, or in accordance with plans furnished by the person for whom the work is done, is an independent contractor. Nor is . his character as independent contractor affected by the fact that his compensation is measured by a per diem to himself and those employed by him., nor that the owner furnishes material for the work.”

The existence and character of the relation between Jenkins and Lambert depending on a written contract unambiguous in its terms, it was tbe province of tbe court to construe the instrument and as a matter of law to determine the relation between the parties. Pioneer Fireproof Con. Co. v. Hansen, 176 Ill. 100, 52 N. E. 17; Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287; Rogers v. Florence R. Co., 31 S. C. 378, 9 S. E. 1059.

It is clear, we think, under the authorities, that Lambert was an independent contractor; and this vie'w is conclusive of the case and renders a consideration of subordinate assignments of error unnecessary.

The verdict of the jury must be set aside, the judgment reversed, and the case remanded for a new trial to be had in accordance with this opinion.

Reversed.