Murphy v. Liberty National Bank

Opinion by Mr. Justice Green, There was a large amount of very intelligent and important testimony on the trial, to the effect that the cause of the falling of the arches was the weakness and insufficiency of the iron work to sustain the weight of the arches. As this was one of the questions submitted to the jury, and the verdict was in favor of the plaintiffs, it must be presumed that they found the iron work to be insufficient, and that this was the cause of the falling of the arches. A careful reading of the testimony on both sides convinces us that the finding of the verdict on that subject was correct. The case is practically argued on the part of the defendant upon the basis that the verdict is conclusive in relation to this matter, and therefore the rule is invoked that [217] the contract made by the plaintiffs is absolute and binds them to complete the building in accordance with the specifications, in any event, and notwithstanding any occurrences, or inconveniences or obstructions which may have arisen, unexpectedly or otherwise, to interfere with the work. Thus the total collapse of the building from defects in the foundation or from violent tempest, or its destruction by fire while in the course of construction, will not relieve the contractor from his obligation to finish the building and deliver it in completed condition to the owner, unless such contingencies have been specially excepted by the terms of the contract. There is no doubt that the rule is well established and is the settled law both in England and in this country, including our own state. It is well expressed in the case of School Trustees v. Bennett, 27 N. J. Law Rep. 518, thus, “No rule of law is more firmly established by a long train of decisions than this, that, where a party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. ... If before the building is completed or aecex>ted, it is destroyed by fire or other casualty, the loss falls upon the builder; he must rebuild. The thing may be done, and he has contracted to do it. No matter how harsh and apparently unjust in its operation the rule may occasionally be, it cannot be denied that it lias its foundation in good sense and inflexible honesty. He that agrees to do an act should do it, unless absolutely impossible.'’ The rule is not strictly and in terms applicable to this case, because the building was completed and was accepted by the owner. And it was completed by the present plaintiffs, the contractors. But a portion of the work was done by another contractor. That is, the filling in of the arches between the beams where the arches had fallen out or been removed for fear of their falling, was done by another sub contractor than the ones who had put in the first fireproofing. This was done at the instance of the architect, and the question is, so far as this matter is concerned, who is responsible for that work, and are the plaintiffs chargeable with a deduction on that account. There is perhaps another reason why the rule invoked for the defendant, is inapplicable. It has an exception if the work to [218] be done is absolutely impossible. Upon the theory that the arches fell out because of the weakness-and insufficiency of the iron work to support them, it is manifest that if the arches were replaced with the same material and with the same iron work, they would simply fall out again, and would continue doing this as often as the work was repeated. Hence if the plans and specifications were strictly followed, as it is contended they should be, it would simply result that the building never could be finished in accordance with them, and the case would be within the exception of impossibility. There was however still another reason why the rule invoked by the defendant does not apply. As soon as the plaintiffs discovered that the beams were being distorted out of position by the pressure of the arches, they proceeded to comply with another provision of the contract which is in these words : “ Whenever the contractor or his men know or think that the drawings or specifications, or both, for any part of the work will not produce secure construction, it is his duty to then stop the work, and to instantly notify the architect of this in writing; and the part of the work so found fault with is not thereafter to be executed until the contractor has received the order in writing from the architect over his own signature as to what is to be done and when to proceed.” On January 4,1895, the plaintiffs sent letters to both the building committee of the bank and the architect, notifying them of the entire insufficiency of the iron work to support the arches, and inclosing in the letter to the building committee the report of engineer Diescher to that effect, and letters from the Pitts-burg Terra Cotta Lumber Company who were putting in the fireproofing, of the same purport. To this letter on the next day, the architect, Osterling, made reply saying that they, meaning apparently the bank and himself, would have the fireproofing done by others. Mr. Murphy’s oral testimony confirms this, and he said the bank then put a light flooring of concrete and no terra cotta whatever, and employed other persons to do it. Under the section of the contract above quoted the contractors stopped the work, which was exactly what the contract required. They never received any notice or order in writing from the architect to proceed with the work, but did receive a notice that the work would be done by others, and that is what was done. This disposition of the matter of course takes the [219] case out of tbe operation of the rule contended for by the defendant, and the plaintiffs were clearly not guilty of any infraction of the contract in respect of their action. The case is thus narrowed down to the inquiry, whether the falling of the arches was the fault of the contractors. They claimed it was not, because the iron work from which it resulted was done in precise accordance with the plans and specifications, and as these were made by the architect, and the plaintiffs were, by the terms of the contract, to follow them explicitly, they were not responsible for the consequences of his mistake. Substantially this was the issue that was submitted to the jury, and was contested before them. The architect, of course, testified that the iron work was sufficient according to his plans and specifications, but the evidence to the contrary by disinterested and very competent engineers and experts was very strong, and the great weight of the testimony was decidedly against him. It was much strengthened by the testimony of the engineer of the firm of T. II. Brooks & Company who made the iron work, who said that he told Osterling, the architect, while the work was going on, that the iron was not near strong enough, and that he ordered his men to leave the building in consequence of the weakness of the iron supports. It is not necessary to review" the testimony on this subject. There was a great abundance of it, and the verdict of the jury was fully warranted by it. In view of these considerations, the rule of absolute obligation on the part of the contractors is inapplicable to the case, and, of course, cannot control its determination. These views dispose of the first ten assignments of error, and they are dismissed. It also follows that the delay in the completion of the building was not the fault of the contractors, and they did not incur the penalty of delay beyond the stipulated time of completion. The eleventh assignment is not sustained. The contract provided that either tile or improved make of concrete construction may be used, and that bids should state what material is contemplated. The contractors having named tile as their material, and their bid having been accepted, and there being no defect in the tiles used, this was a compliance with the contract, and when they actually furnished perfectly good tiling and placed it in the arches, they complied with their contract in [220] that regard. If it fell, through no fault of theirs, and the architect and the bank selected a new and different material and put it in themselves, in place of what had been already furnished by the contractors, the contractors were not deprived of their right of lien because their material was not in tlie building at its completion. Its absence was no fault of theirs, and the defendant certainly did not have an arbitrary right to remove any proper material actually put in place, and then claim an exemption from any lien which embraced the displaced material. The authorities cited for the defendant in this connection are the undoubted law, but they have no application to such facts as these. The remaining assignments relate to the claim for extras. There was an amount of $522.38 of extras, which was admitted to be due.' A portion of the claim was for work done in removing the material that had fallen from the arches, and the remainder of the material that had not fallen. This it is claimed was done by specific orders of the architect to'the subcontractor, without consulting with the plaintiffs. There were a few other items, but as to the whole, the evidence raised a question of waiver of the provision of the contract which required that no claims for extras should be made “ unless the same shall be done in pursuance of a written order from the architect.” There was evidence enough on that subject to justify the court in leaving the question to the juiy, and we cannot say there was error in so doing. There was a large diminution by the verdict of the amount of the plaintiffs’ claim for extras, and it is not at all clear that any injustice was done to the appellant by the verdict of the jury in regard to these matters. We do not think that error has been shown in any of the assignments after the eleventh, and they are therefore all dismissed. Judgment affirmed.