Larson v. Tacoma School District No. 10

*415 Mitchell, J. This action was brought to recover two thousand dollars alleged to be the balance due on a contract for the building of the Jason Lee school building in the city of Tacoma. The defendant school district counterclaimed. Findings of fact and judgment were entered for the defendant. The plaintiff has appealed. As the case is presented on the appeal, the controversy is over the ground floor corridor through the building. The finishing of the corridor was not successful. If the appellant was responsible for that result, the judgment is right; if he was not the cause of it, he is entitled to a judgment for two thousand dollars and the counter-claim fails. There was a written contract between the parties including plans and specifications for the building. The original plans and specifications for finishing the corridor floor were modified. The trial court found that the contractor failed to construct and finish the corridor floors according to the modified plans and specifications, with the result that the floors are badly checked and cracked and the concrete fill laid upon the concrete base is loosened from the base, and the colored surface coating of concrete laid upon the fill is loosened from the fill. No detail is given in the findings as to what the failure to comply with the plans and specifications consisted of. The dominant and controlling contention of the parties is around that finding which in our opinion is opposed to a preponderance of the evidence. The corridor is two hundred and fifty feet long and about twelve feet wide. It has a concrete base or slab, as it is termed, which on each side connects with and is a part of a concrete base supporting a wall of the corridor, all of which had been constructed in the early *416 period of the building and had become thoroughly dry before the corridor was to be finished with filling or topping. It was discovered that, by a mistake in the plans and specifications, it became necessary to raise the corridor floors an additional one-half inch to equal the level of the class room floors on either side; and for that purpose, instead of a singl.e filler or finish of one inch, the specifications were modified so that, on the hardened slab, should be laid one inch concrete in the proportion of 1 cement, 3 sand and 5 gravel, and on top of that one-half inch layer consisting of one part cement and two parts sand mixed with color mix. It will be observed, as- witnesses testified and of which there was no dispute, the top layer of one-half inch was of richer, denser and more compact material than the one inch layer immediately under it, the latter being composed of more than one-half gravel with no color mix and the top layer having no gravel, only two parts sand with one of cement mixed with coloring. There is no contention that the material used was not up to standard. Eespondent contends that the top layer cracked and that the layers separated in places instead of adhering, because of poor workmanship. The appellant contends that the fillings were laid according to approved and workmanlike method and that the plans and specifications were at fault; and that two thin layers of such material, the top one more susceptible to expansion and contraction because of its being on top and more compact than the others, in such a large surface of twelve by two hundred and fifty feet, without expansion joints (the plans and specifications not providing for any) and bound in solidly on either side by the concrete base of the walls and underneath by the original hardened concrete base or slab must necessarily lead to the disaster or result that happened. *417 There is no testimony that the architect paid any attention to the performance of this part of the work. The respondent’s superintendent of school buildings, who testified that he had the supervision of the construction of the Jason Lee building, was about the construction more or less, but it is not claimed he was versed in concrete construction. The respondent had an inspector on the work at all times who was conversant with what was being done and the manner in which this and all other parts of the work were performed. Neither of them made any objection at all to the manner of doing the work nor to the material that was used. One qualified expert on behalf of the school district, who had not seen the building nor had either observation or experience in the laying of two fillers of this or other kinds on a concrete slab or base, testified that, in his opinion, they could be successfully laid, and that the failure in this case was attributable to poor workmanship. On the contrary, there was testimony in circumstantial detail of the manner in which the work was done, disputed by no one, which by the great weight of the evidence was the correct method to lay the particular filler and topping. Two workmen, of years of experience to date as concrete finishers, employed on this job testified alike that the fillings were bound to go out constructed as they were by the plans and specifications. Example: “Q. Were there any expansion joints in the Jason Lee School? A. None; none whatever. Q. It was all one solid slab for 250 feet; and 12 ft. wide? A. Yes. Q.'How much experience have you had with concrete, Mr. Benson? A. Been working off and on with it the last 15 or 16 years.- Q. What in your opinion is the effect of laying down a top floor of that character be *418 tween two solid cement wall bases, without any expansion joint? A. The only way I can see it, it would have to have some place to expand — if it cannot go sideways it surely must go out.” Another witness of experience in this kind of work who had charge of laying the floor testified: “They were laid absolutely according to the plans and specifications to the satisfaction of the inspector provided by the school board.” This was not denied by the inspector nor anyone else. He did not testify on these matters at all. Speaking of the different kinds of material in the two layers this witness testified: “I will say that the top coat there will expand away ahead of the bottom course. Not only on account of the mixture but because it is right in contact with the heat and cold in the room, where the other one is in between and not subject to the change of atmosphere. ” He further testified that the cause of the cracking of the top layer and separation of the layers from each other was the lack of expansion joints. A number of other witnesses testified to the same effect. We need not set out their testimony. A significant feature of the proof was that another school building in the city built later was provided with expansion joints in the filler on the concrete slab in the corridors and it stood up, while it was otherwise with still another school building and the veterans’ hospital at American Lake built about the same time where there were no expansion joints in the filling. The work in question was done the latter part of August and the first of September, being finished on Saturday before school opened in the building on Tuesday. There was artificial heat in the building while the work was going on, *419 and the testimony shows that such work of concrete finishing should he kept free from heat at least ten days. There is no charge or complaint that the appellant was responsible for the heat in the building. There was no guaranty of results on the part of the builder in this case. The contract required the builder to “. . . furnish all labor, materials and supplies for and to build, erect, construct and complete the construction of said public school building ... in accordance with the plans and specifications thereof heretofore prepared by Boland E. Borhek, architect, under the direction of the party of the second part (school district).” The result in building the corridor was disastrous, but the builder’s right to recover is not to be defeated simply because the result contemplated by the school district has not been realized. He must be at fault, else recovery should be allowed. That the builder was not at fault in this case has been established by a preponderance of the evidence in our opinion, as before stated. The fault was in the defective modified plans and specifications furnished by the school district, for which the appellant was in no way responsible under any fair or reasonable construction of the contract. We do not understand there is any disagreement among counsel as to the law applicable to such cases, but, without quoting from any of them, some of the cases may be mentioned as follows: Bush v. Jones, 144 Fed. 942; Cannon v. Hunt, 116 Ga. 452, 42 S. E. 734; MacKnight Flintic Stone Co. v. City of New York, 160 N. Y. 72, 54 N. E. 661; Culbertson v. Ashland Cement & Construction Co., 144 Ky. 614, 139 S. W. 792; Bancroft v. San Francisco Tool Co., 120 Cal. 228, 52 Pac. 496. *420 . Reversed, with directions to the superior court to enter judgment for the appellant. Mackintosh, G. J.r Main, Fullerton, Askren, French, and Tolman, JJ., concur.