Bayshore Development Co. v. Bondfoey , 75 Fla. 455 ( 1918 )

Ellis, J.

The plaintiff in error brought an action in the Circuit Court for Hillsborough County against Bondfoey & Elliott, a copartnership composed of B. C. Bondfoey and M. Leo Elliott, architects, for damages to the plaintiff which it was alleged resulted from the defendants’ negligence and lack of skill in preparing for the plaintiff certain plans and specifications for the construction of two residence buildings, and from defendants’ negligence in the direction and supervision of the construction of said buidings which work they undertook to perform, and for a breach of warranty as to the effectiveness and sufficiency of . certain stucco work as a safe, secure, substantial and weatherproof construction for the outside walls of the two buildings.

There was a trial by jury. After conclusion of the testimony the court directed a verdict for the defendants. A judgment was entered for the defendants, and the plaintiff took writ , of error.

Two questions are presented: First, whether there was evidence, sufficient to go to the jury upon the issues joined; second,'what is the measure of damages?

If there was substantial evidence sufficient to support a .verdict in behalf of the plaintiff, that is to say if in the evidence adduced before the court there was room for difference'of opinion between reasonable men as to whether the issues should have been found in favor of the defendants, then the court erred in' directing a verdict for' the defendants. See Thiesen v. Gulf, Florida & Alabama Railway Co., upon rehearing, decided at this term; Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 South, Rep. 975, L. R, A. (N. S.) 1917E, 715.

In the case of Rogers Co. v. Meinhardt & Co., 37 Fla. 480, 19 South. Rep. 878, the court said: If “there is conflicting evidence or a dispute as to what actually occurred and any view that the jury might lawfully take of it will sustain their findings for either party, the facts should not be withdrawn from them. To state the rule definitely, the judge should never direct a verdict for one party, unless the evidence is such that no view which the jury may lawfully take of it favorable to the other party can be sustained.” See also German-American Lumber Co. v. Brock, 55 Fla. 577, 46. South. Rep. 740; Hillsborough Grocery Co. v. Leman, 51 Fla. 203, 40 South. Rep. 680; Starks v. Sawyer, 56 Fla. 596, 47 South. Rep. 513; Gunn v. City, of Jacksonville, 67 Fla. 40, 64 South. Rep. 485.

The first count of the declaration was based upon the alleged negligent failure .to use skill-and care on defendants’ part in the making and execution of the plans and specifications. It being alleged that the plaintiff employed the defendants as architects to make the plans, specifications and drawings “for the erection of two certain residence buildings” on certain described lots in the Morrison Grove Subdivision of the City of Tampa. To this count the defendants pleaded first, never promised as alleged; third, not guilty; fifth, that defendants used all ordinary skill and care that is customarily used by architects in similar undertakings. Issue was joined upon these pleas. There were other plea's, but they were eliminated either by motion to strike or demurrer.

The second count rested upon the alleged negligence of the defendants in the matter of the direction and supervision of the construction of the buildings under the said plans and specifications and to issue certificates for payments to the contractor only when the defendants knew that the work was correctly and thoroughly executed. It being alleged that the defendants had for a valid consideration undertaken to perform that service. To this count the defendants pleaded, first, that they never promised as alleged; third, not guilty, and eighth, that the plaintiff placed other persons in authority over the defendants during the erection of the buildings and took charge of the supervision of the erection of the buildings, thereby relieving defendants of responsibility. Issue was joined upon these pleas. There were also other pleas to this count, but they were eliminated by demurrer or motion to strike. A plea niumbered “Fifth” interposed to the second and third 'counts'set up that the defendants used all ordinary skill 'and care that is customarily used by architects in similar undertakings. A demurrer was interposed to this plea as a plea to third count and the demurrer was sustained, but what disposition was made of it as a.plea to the second count the record does not show- Apparently the case went to trial with- no issue upon the plea.

The third count was based upon an alleged breach of warranty by the defendants whom it was alleged promised, guaranteed and warranted to the plaintiff that the stucco work called for by the plans and specifications would be a “safe and secure construction and 'said outside walls would be substántial and weatherproof.” To this count the defendants interposed the same pleas that they interposed to the second count.'' Issue was joined upon the first, third and eighth pleas also upon the fourth plea which denied that the defendants promised, warranted or guaranteed the matters and things mentioned in the third count.

The first and second counts of the declaration are in tort growing out of a contract. The first plea was not applicable therefore. The fifth plea to the first count we think was covered by the plea of not guilty. See Rule 71 Circuit Court Law Actions, and should be treated as the general issue. Key West v. Baldwin, 69 Fla. 136, 67 South. Rep. 808.

The issue presented by the first count therefore was: Were the defendants guilty of a negligent failure to use skill and care in making up the plans and specifications for the two houses?

The duty owed by an architect to his employer is that he will exercise and apply his skill and ability, judgment and taste reasonably and without neglect. See 2 R. C. L. p 400; Coombs v. Beede, 89 Me. 197, 36 Atl. Rep. 104.

Mr. Chief Justice Peters speaking for the court in the Coombs-Beede case, said: “The responsibility resting on an architect is essentially the same as that which rests upon the lawyer tó his client, or upon the physician to his patient, or which rests upon any one to' another where such person pretends to possess some skill and ability, including' taste sufficient to enable him to perform the required services at least ordinarily and reasonably well; and that he will exercise and apply in the given case his skill and ability, his judgment and taste reasonably and without neglect. But the undertaking does not imply or warrant a satisfactory result. It will be enough that any failure shall not’ be by the fault of the architect.”

In Chappel v. Clark, 117 Mich. 638, 76 N. W. Rep. 62, the court said:. “The question was, Had plaintiff exercised that degree of care and skill and that judgment which are common to the profession or business?” The case was one in which an architect sued the owner of a building for services rendered as architect. The arrange-meat was in parol. The architect was also employed by the defendant to superintend the construction of the building. The suit was to recover the value of his services in drawing the plans and specifications. The defendant claimed that the plaintiff had not performed his work with due and necessary skill and care; that the plans were faulty, defective and unskillful. Plaintiff recovered verdict and judgment. The court said the law requires only the exercise of ordinary skill and care in the light of present knowledge. That if the plans and specifications for those parts of the building which the plaintiff claimed were defective, were in fact justified by the common knowledge upon such matters at the time and meet the judgment and approval of those men ordinarily skilled and experienced in their conclusion, the plaintiff had complied with his contract. See Blake on Architecture & Building, Secs- 39, 45, 46; Lottman v. Barnett, 62 Mo. 159; 6 Cyc. 34.

The first count particularizes wherein the defendants failed to use ordinary skill and care in the preparation of the plans and specifications. It is alleged that they were faulty in design, .defective, insufficient and unsuitable for the purposes for which they were intended. That the stucco work was defective and faulty on account of materials called for in its composition and the manner of construction ; that the buildings were not rain proof; the chimneys failed to draw. On account of such defects the buildings were entirely uninhabitable and useless to plaintiff.

The case made by this count of the declaration as we construe it is one in which the buildings were defective and unfit for' use because of improper or unsuitable material prescribed in the specifications for the “stucco” work, the insufficient method prescribed for putting it on, and defective plans for construction of the buildings and chimneys.

We have .examined the evidence in the case and find that although there is no proof as to the defective composition of the material, to be used for the “stucco” there was evidence sufficient to go to the jury as to whether the method provided by the specifications for ‘applying it to the buildings was such as to show the proper care and skill which should have been exercised by the architect. The evidence upon this subject was conflicting, it is true, but it was the province of the jury and not that of the court to determine the facts.

Mr. F. J. Kennard, an architect, testified that the buildings were “frame construction, stucco finish on the outside;” that the specifications were defective in regard to the stucco, it was not sufficient- to make a water proof job, a weather tight job. “This specification .calls for lathing, wood lathing right on the siding, and then to be stuccoed with cement plaster finished three-eighths of an inch thick. That is not the best and in my opinion there should have been tight board sheathing on the siding first, then weather proof paper and what we call strips or cleats to nail the lathing to, to form a key for the stucco.” That considering the location of the buildings' the style of construction suggested by him “was more necessary than it would be in. some other places.” That to place the stucco in the manner called for by the specifications he would “expect it to leak” a good deal-

Reference to the specifications shows that the lathing for the stucco was to be the same as that prescribed for lathing the interior , of the house for plaster. These specifications permitted the nailing of the laths to the studding or the perpendicular framing which consisted of pieces of 2 x 4 dressed and set up 16 inches on centres. The specifications are silent on the subject of the dimensions of the chimneys, and the flue construction. There was evidence tending to show defective construction in this particular. There was also evidence tending to show faulty specifications regarding the “window flashings” “causing water to leak through the open joints” said Mr. Kennard. The specifications contain no provision on this subject except that the outside casings around windows to be “1 x 6 rabbetted on edge that comes next to stucco.” The width of the rabbet is not specified. The question of whether a rabbet joint between a window casing and stucco siding for a house shows the exercise of ordinary or usual skill in preparing specifications by an architect for a residence to be erected in an exposed place was matter for consideration and determination by the jury. There was evidence to show that leaks developed throughout the entire structure wherever there happened to be a joining of the stucco.to the woodwork.

All matters of inducement such as the employment of the architects, the bolding of themselves out to the public as such, confidence reposed in them by plaintiff, and the making of the .contract for the plans and specifications, were admitted by the pleadings. See Cotton States Belting & Supply Co. v. Florida R. Co., 69 Fla. 52, 67 South. Rep 568. This is conceded by counsel for the defendants in error in the brief.

We think there was error in taking the case as made by the first count, from- the jury.

As to the second and third counts we are unable to say that there was sufficient evidence in support of them to go to the jury.

The second count complains of the defendants’,.alleged negligence in supervising the construction of the buildings. There was nothing to show that the buildings were not constructed as the specifications provided they should be, nor that the defendants were negligent in the discharge of that duty. The testimony of H. Guy Nickerson upon this subject seems to have been a matter of opinion based upon the fact that the. roof leaked. The testimony of Mr. Kennard as to the insufficiency of the flashing around the windows related it seems to the alleged defective specifications.

The third count we also think was unsupported by any. evidence legally sufficient to warrant a verdict for the-plaintiff. ...

There was no.evidence of a guaranty or warranty made by the defendants that- the stucco work called for by the specifications would he a “safe and secure construction,, and said outside walls would be. substantial and waterproof.” . The evidence offered by plaintiff to the effect that it was not, was admissible,- as tending to show lack of ordinary and reasonable skill, in the preparation of the specifications. The architects undertaking does not imply or guarantee a perfect plan nr satisfactory result, and there was no evidence sufficient to support a verdict on this count for the plaintiff of the existence ofi a specific promise or guaranty by the defendants. The testimony of Mr. Nickerson we do -not consider sufficient for this purpose. What he said.about not accepting the plans until being assured as to the character of the construction and that it would-be, safe, .amounted to. nothing more than an affirmance by the defendants of the duty which rested upon them as architects to prepare specifications with ordinary and reasonable skill.

The question of the measure of damages is presented by several assignments of error resting upon the court’s rulings in the rejection of evidence offered by the plaintiff as to the damages sustained.

Blak¿, in his work on Architecture and Building lays down what we consider a safe and sound rule. It is, says he, “an. amount equal to the difference between the value of the building as actually designed and constructed and the value as it would have been if the building had .been properly designed and constructed.” p. 69. And says the same author “when on account of defects or of some oversight on the part of the architect it is necessary that repairs be made the claimant cannot make at an unnecessary expense or in an unnecessarily extravagant form and recover as damages the amount of, his disbursements. He must confine his claim to such sum as will represent the cost of effecting the repairs as economically as it is possible to effect them consistent with proper workmanship and construction.” This rule seems to take no account of loss of rentals nor delays in occupying the premises which are too remote and speculative to be considered» For the error pointed out we think the judgment should be reversed, and it is so ordered.

Browne, C. J., and Taylor, Whitfield and Ellis, J .J., concur.