Blue Diamond Co. v. Charles M. Allen & Son, Inc.

BRYAN, Circuit Judge. Appellee recovered judgment against appellant in an action which alleges the breach of a contract to furnish the kind of mortar that had been specified by an architect for use in the construction of a building which appellee built under an agreement with Thomas Watts, the owner. The architect’s specifications called for mortar containing one part of cement to two and a half parts of clean sharp sand, and gave permission that “the mortar, as above specified, may be made by the Blue Diamond process.” It is undisputed that the mortar originally used contained one part of cement to six parts of sand, and therefore did not comply with the'specifications but was of an inferior quality. Upon completion of the building, there developed through the mortar joints of the outside walls leaks which appellee repaired and stopped up, in compliance with the architect’s requirements and its agreement with the owner. The judgment was for the amount expended in pointing up the mortar and making the necessary repairs, together with interest. The architect testified that appellant’s method of mixing mortar was merely a mechanical one, that it regularly made its mixture according to his specifications, but whether they had been complied with could [2] not be ascertained upon a casual inspection. This testimony was not contradicted, although there was evidence for appellant to the effect that the mortar originally used in the Watts Building was the only kind that it was then manufacturing. The real question in the case is whether the parties entered into the contract alleged in appellee’s petition; and its solution depends upon the legal effect of what was said in a conversation that was held between Charles T. Allen and W. H. Brooks. The former was appellee’s secretary and general manager, and the latter was appellant’s president; and there was no question as to the authority of either to act for the corporation he represented. Allen’s testimony may be stated in condensed form as follows: It was appellee’s duty to buy material for the Watts Building. Brooks came to see me and solicited an order for the mortar. I explained that we were doing this work under the supervision of an architect, and would be governed by his decision; and that he would have to comply with the architect’s specifications. He then told me “that he had already done that,” and that the architect “had incorporated” appellant’s mortar “in the specifications.” “On that assurance, I told him that we would use the mortar.” We agreed on the price, which was either $6.75 or $7.25 per yard. “At the time I made the contract with Mr. Brooks to use Blue Diamond mortar, we had intended to do the masonry work ourselves, and, with that in view, I had bought the brick, terra cotta and the mortar. The Lewis Building Company * * * made us a proposition that was so advantageous that we decided to let them do it under a sub-contract. So I entered into a contract with them, explaining to them that we had obligated ourselves to use Blue Diamond mortar, and that we would expect them to use the stuff that we had bought. * * * The mortar was furnished to the sub-contractor, Lewis Building Company, and it paid for-the mortar. The price that the sub-contractor bid for the work was based on the price that we had received for the mortar. My understanding was that the mortar was furnished to the Lewis Building Company under the contract that we made with Mr. Brooks.” In giving his version of the conversation, Brooks testified that, after learning that Allen had secured the contract for the construction of the Watts Building, he went to him and asked him if he was going to do the brick work himself or sublet it. “Mr. Allen told me he did not know, but he might sub-let the brick work on that building. I do not remember having any other talk with Mr. Allen in regard to furnishing mortar for the Watts Building. I was waiting to see whether he would do the brick work or sub-let it. When I discovered that Mr. Allen was not going to do the brick work on the building himself, I solicited the brick work from the Lewis Building Company, the sub-contractor.” He further testified that before he went to see Allen he had already interviewed the architect, but was not familiar with the building specifications, although he knew that Blue Diamond mortar could be used; and admitted that he told Allen it had been approved for the Watts Building. It was appellant’s practice to sell its material through dealers; and in this instance the order was handled through the Standard Building Material Company, but appellant itself delivered the mortar to the Watts Building in its own trucks. At the dose of the evidence appellant moved for a directed verdict in its favor on the ground that the contract alleged had not been proven. The trial court denied this motion, and instead charged the jury that the contract sued on had been established, if they believed Allen’s testimony to be true, but if they did not so believe, in view of Brooks’ testimony, that they must find that there was no contract between the parties and return a verdict for appellant. A motion for a new trial was made on the ground, among others, of newly discovered evidence based upon the affidavit of J. D. McEaddy, member of the firm of the Lewis Building Company, subcontractor, to the effect that he represented this firm in the negotiations with Allen which resulted in the subcontract; that Allen- did not represent to the subcontractor that he had the contract with appellant, but merely requested, “everything being equal,” that its mortar be used. In a supporting affidavit Brooks stated he was unaware that appellee would present evidence on the trial to prove a contract between 'the parties- to the suit whereby appellant agreed to furnish mortar, and that his first knowledge of the claim of the existence of such a contract was when Allen gave his testimony; and that after Allen testified McEaddy could not be located and produced as a witness at the trial. There are a number of assignments of error based upon rulings during the course of the trial, but they all relate to the single point whether Allen’s testimony was sufficient to prove the contract sued on. Of course, according to Brooks his conversation with Allen did not reach beyond the stage of negotiations, and the only contract made was with the subcontractor. But this theory disappears along with the rejection by the jury of [3] Brooks’ testimony, as does also the contention that Allen was undecided whether he would do the masonry work himself or have it done by a subcontractor. In accordance with the verdict of the jury, we accept as true Allen’s version of the conversation. Under the evidence so considered, in our opinion all the elements of a valid contract are present. There was a promise for a promise, a consideration was agreed upon, and there was nothing left for future decision. Brooks promised to furnish mortar which would comply with the architect’s specifications. It is no defense that he did not know what those specifications were. They were available to him, and he admitted that he told Allen the mortar which he proposed to furnish had been approved by the architect. Allen promised to accept the mortar, and to pay a stipulated price for it. ;It was no concern of his if Brooks afterwards sold the same or a different kind of mortar to the subcontractor, although even then there would be an element of unfairness in his delivering mortar which he knew was of an inferior grade and did not come up to specification. Nor is Allen’s promise affected by the circumstances that after he made it he accepted the offer of a subcontractor to do the masonry work, and a subcontractor received the mortar and paid for it. The mortar was delivered to the building and appellee was obligated to pay for it. There was nothing in the contract which would relieve Allen of his promise if the masonry work was done under a subcontract. Appellant delivered the mortar to the Watts Building by its own trucks, and it is of no importance that, under its trade practice and for its own purposes, a material dealer or jobber was credited with the sale. As appellee had no connection with the transaction, he could not be made to accept the dealer in the place of appellant as a party to the contract. The mortar, it is conceded, was not up to specification, and was unfit for the use to which it was put. There was thus shown a plain breach of contract, and appellee was damaged in the amount of the verdict which represented the cost of necessary repairs. The conclusion is that there was no error in refusing the request for a directed verdict, or in giving the charge complained of. Denial of the motion for a new trial is also assigned as error, .but clearly no abuse of the trial court’s discretion is shown. Appellant must have known that appellee would undertake to prove the existence of the contract alleged, and by the exercise of reasonable diligence could have ascertained as well before as after the trial what it is now claimed a member of the firm of subcontractors would testify. The judgment is affirmed.