Simpson Bros. Corp. v. Merrimac Chemical Co.

Cabboll, J. The plaintiff (hereinafter called the contractor), whose business was the designing and building of reinforced concrete structures, including reinforced concrete oil tanks, made a contract with the defendant (hereinafter called the owner), a corporation engaged in the business of manufacturing heavy chemicals, to build for it an underground concrete tank for the storage of fuel oil. The plan was prepared by the contractor and submitted to the owner. The drawings and specifications were part of the contract, the specifications in paragraph 2 providing, “ The work shall be done in accordance with drawings accompanying specifications, as made by the contractor and approved by the owner.” The matters in dispute between the parties were by a written agreement submitted to arbitrators, the contractor contending that it had performed its contract and was entitled to the balance of the contract price. The owner contended that the tank was badly designed; that the contractor failed to use reasonable and ordinary engineering skill in designing it; and that it was entitled to recover damages. The contention of the owner was sustained by a majority of the arbitrators. The agreement of arbitration directed the arbitrators to “ report any findings of fact necessary to the decision of any question of law raised, and — 349 — shall report their rulings on such questions.” A majority of the arbitrators found that no representative of the owner approved of the plans showing the design of the tank “ in any particular relating to its strength or ability to hold oil unless such approval is to be implied as a matter of law by reason of the recital in paragraph 2 of the specifications”; that no representative of the owner attempted to supersede the judgment of the contractor’s engineer in any matter relating to the design or construction of the tank; that the design of the tank was inadequate for the conditions as they already existed; that in designing the tank the contractor did not use reasonable and ordinary engineering skill and care, and that the failure of the tank was due solely to this fact. The case is before us on the contractor’s exceptions. Giles v. Royal Ins. Co. 179 Mass. 261, 268. The approval of the plan by the owner, under the clause in the specifications already referred to, did not, as matter of law, mean an unqualified acceptance and sanction of the whole scheme in all its details, as planned by the contractor. By approving the plan the owner did not excuse the contractor from the exercise of ordinary and reasonable skill in designing the structure. The owner had the right to rely on such skill and had the right to assume that it would be exercised. It could approve the plan submitted, without depriving itself of a remedy, if the plan was inadequate, or, because of a lack of reasonable- skill on the contractor’s part, the tank failed to hold the oil for which it was designed. The word “ approved ” has been used to mean determination, examination and positive sanction. See G. L. c. 74, § 1. Galligan v. Leonard, 204 Mass. 202, 205. Amory v. Lowell, 104 Mass. 265. Brown v. Newburyport, 209 Mass. 259. McLean v. Mayor of Holyoke, 216 Mass. 62, 64, 65. Simpson v. Marlborough, 236 Mass. 211, 214. The word, however, was not used in this sense in the contract of the parties. The owner approved the general plan submitted. This did not mean that all the particular details of the plan, — the engineering skill and the sufficiency of the structure, — were approved in all the respects called for by the contract. See Shipman v. State, 43 Wis. 381, 390, 391. — 350 — The owner was not estopped from showing the defects in the plan and the contractor’s lack of skill. The second request of the contractor was denied properly. J. R. Worcester and Company were consulted at the suggestion of the contractor’s engineer, to ascertain if the tank as designed would be safe against flotation, provided it was placed two feet below the existing surface. Certain suggestions were made by J. R. Worcester and Company to the contractor, but were not carried out by it. The request relating to the employment of J. R. Worcester and Company by the owner and the effect of its approval were properly denied. Exceptions overruled.