[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 74
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 75
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 76
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 77
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 78 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 80 The main question presented for decision is whether the plaintiff can recover without making the floor of the boiler room absolutely water proof, even if it has conformed in every respect to the plan and specifications? The plaintiff insists that it has fully performed the contract, because it has furnished all the materials of the quality required, and has done all the work called for by the plan and specifications, while the defendant insists that performance is not complete because the plaintiff warranted that the plan and specifications when carried into effect would result in a water-proof boiler room, and that the boiler room is not water proof.
While the evidence would not compel, it would support a finding that the contract has been fully performed, unless the plaintiff guaranteed the sufficiency of the plan and specifications to produce absolute water-proof construction. The form of its promise was to furnish "the materials and labor for the purpose, and make water-tight the boiler room, etc. * * * in the manner and under the conditions prescribed and set forth in the annexed specifications," and that it would turn the work over to the city "in perfect order and guaranteed absolutely water and damp proof for five years from the date of the acceptance of the work;" any dampness or water breakage within that time to be made good by the contractor without expense to the city. If this means that the plaintiff agreed to make the boiler room water tight by following the *Page 82 plan and specifications, even if it could not be done in that way, it agreed to perform an impossibility, as the jury might have found. If, on the other hand, the meaning is that it agreed to make the boiler room water tight by following the plan and specifications, provided it could be done in that way, it has performed its contract, as we must assume for the purpose of this appeal.
The rule of reasonable construction governs courts in the enforcement of contracts. The contract now before us does not necessarily require the construction that the plaintiff guaranteed the sufficiency of the plan and specifications to produce the result desired, because it does not in terms so provide. There is no independent or absolute covenant to that effect. There is nothing in the subject of the contract, the situation of the parties or the language used by them, to conclusively indicate such an intention, and a fair and reasonable construction avoids such a peculiar and unjust result. The agreement is not simply to do a particular thing, but to do it in a particular way and to use specified materials, in accordance with the defendant's design, which is the sole guide. The promise is not to make water tight, but to make water tight by following the plan and specifications prepared by the defendant, from which the plaintiff had no right to depart, even if the departure would have produced a water-proof cellar. If the contractor had designed and executed a plan of its own, which resulted in a tight cellar, it would not have been a performance of the contract, for it was to produce a water-proof cellar by following the plan and specifications made by the defendant and not otherwise. The plaintiff was not allowed to do additional work, according to a plan of its own, although it claimed it would prevent all dampness, and the defendant did not attempt to remedy defects at the expense of the plaintiff, as authorized by the contract. There was no discretion as to the materials to be used or the manner in which the work should be done. The plaintiff had no alternative except to follow the plan under the direction of the defendant's officers in charge. The defendant relied upon the skill of its *Page 83 engineer in preparing the plan, with the most minute specifications, and bound the plaintiff to absolute conformity therewith. As was said in a similar case arising in Pennsylvania: "Every line was drawn, every grade was fixed and every detail was provided for by the city." (Filbert v. Philadelphia, 181 Pa. St. 530, 545.)
This is not the case of an independent workman, left to adopt his own method, but of one bound hand and foot to the plan of the defendant. The plaintiff had no right to alter the specifications, although the defendant had a qualified right to do so. If the plan and specifications were defective it was not the fault of the plaintiff, but of the defendant, for it caused them to be made and it alone had the power to alter them. It relied upon its own judgment in adopting them, not upon the judgment of the plaintiff. It decided for itself out of what materials and in what manner the floor should be constructed, and not only required the plaintiff to use precisely those materials and to do the work exactly in that manner, but also inspected both as the work advanced without complaint or question as to either. "If," says Mr. Parsons, "the thing is itself specifically selected and ordered, there the purchaser takes upon himself the risk of its effecting its purpose." (1 Parsons on Contracts, 587.) The defendant specifically selected both material and design and ran the risk of a bad result. If there was an implied warranty of sufficiency, it was made by the party who prepared the plan and specifications, because they were its work, and in calling for proposals to produce a specified result by following them, it may fairly be said to have warranted them adequate to produce that result. If I agree to produce a certain result according to my own plan, I impliedly warrant its sufficiency; but if I agree to produce that result by strictly following the plan prepared by another party, he impliedly warrants its sufficiency. The responsibility rests upon the party who fathers the plan and presents it to the other with the implied representation that it is adequate for the purpose to be accomplished. A stipulation requiring a contractor to produce a certain result by following the plan and directions of the owner *Page 84 is an undertaking that it can be done in that way. Interpreting their language in the light of surrounding circumstances, we do not think the parties meant that the plaintiff was to be responsible for a bad result unless there was some default on its part in doing the work or furnishing the materials, for, to use the language of a learned court in an analogous case, "It would certainly be regarded as most extraordinary to find that a contractor had undertaken to warrant the perfection of a plan which is designed by the person for whom he is to do the work, or the wisdom of directions given during the progress of the work by one whom he cannot control, but whose orders in the execution of the work he is, by the terms of the contract, bound to obey." (MacRitchie v. City of Lake View, 30 Ill. App. 393, 398.)
It would not be reasonable to hold the parties to have intended that the plaintiff was to do a great deal of work and furnish a large quantity of materials according to the specifications of the defendant and under the direction of its officers, with no right to vary from the materials or construction specified, and yet get no pay for it unless it produced a certain result, without very plain language to that effect, which we do not find in the instrument before us, although it is elaborate in form and embraces the most minute details. Parties might make such an agreement, but if the language used admitted of a different construction the courts would be apt to adopt it and thus avoid the conclusion that an impossible result was intended. The fault of the defendant's plan should not prevent the plaintiff from recovering payment for good work done and good materials furnished precisely as the defendant required. The reasonable construction of the covenant under consideration is that the plaintiff should furnish the materials and do the work according to the plan and specifications, and thus make the floors water tight so far as the plan and specifications would permit. This result finds support in the following authorities, some of which are precisely analogous while others sustain the principle adopted. (Kellogg Bridge Co. v. Hamilton, 110 U.S. 108;MacRitchie v. City *Page 85 of Lake View, 30 Ill. App. 393; Filbert v. City ofPhiladelphia, 181 Pa. St. 530; Bancroft v. San Francisco ToolCo., 120 Cal. 228; Bentley v. State, 73 Wis. 416;Cunningham v. Hall, 86 Mass. 268; Burke v. Dunbar,128 Mass. 499; Perkins v. Roberge, 39 Atl. Rep. 583; Clark v.Pope, 70 Ill. 128; Rice v. Forsyth, 41 Md. 389; Weld v.Goldenberg, 65 Fed. Rep. 466; Smith v. Consumers' Cotton OilCo., 86 Fed. Rep. 359; Hoe v. Sanborn, 21 N.Y. 552; Byron v. Mayor, etc., 22 J. S. 411.)
We have examined the cases relied upon by the respondent, but find none in serious conflict with the views thus expressed.Thorn v. Mayor of London (L.R. [1 App. Cas.] 120) is quite dissimilar in its facts as well as in the governing principle. Its peculiar and unique features are well set forth by the court in Bentley v. State (supra).
Thus far we have discussed the promise to make "water tight" with which the contract opens, and we now come to the five-year guaranty clause near the close. The plaintiff agreed to turn the work over "in perfect order and guaranteed absolutely water and damp proof for five years," and to make good any dampness or water breakage during that period. This, as we think, applies to the material and workmanship, but not to the plan. It has reference to what the plaintiff was to do, not to what the plan would accomplish, and is predicated on the efficiency of the plan. The plaintiff was to execute the work according to the plan and to turn it over in perfect order, but to guard against latent defects he was required to protect the defendant against them for the period named. Any defect owing to poor workmanship, or bad materials, was to be made good. The guaranty, which became operative only upon acceptance of the work, did not relate to its condition when accepted. It required something to be done in the future provided it became necessary, not on account of a defective plan but of defective execution. It related only to the quality of the work and materials. The contract price was payable when the work was done, not at the end of five years, and payment would end all liability of *Page 86 plaintiff on account of defective execution unless such a clause was inserted to cover defects not discovered. It was not a guaranty of the perfection of the plan, but of the materials and workmanship, and its effect was to make the plaintiff responsible for dampness or water breakage caused by such defects only. It required supplementary performance, if necessary, upon notice from the defendant, after acceptance and payment of the contract price.
We think the evidence presented a question of fact for the jury as to the sufficiency of the plan to produce the result desired, and as to performance of the contract when properly construed. If the work was faithfully performed according to the plan and specifications, and the failure to secure a water-tight boiler room was wholly owing to the defective design of the defendant, the plaintiff would be entitled to recover notwithstanding the refusal of the superintendent to give the required certificate, for under those circumstances it would be his duty to give it and a refusal to do so would be unreasonable. (Bowery National Bank v. Mayor, 63 N.Y. 336; Nolan v. Whitney, 88 N.Y. 648;Thomas v. Stewart, 132 N.Y. 580, 586.)
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur, except GRAY, J., dissenting.
Judgment reversed, etc. *Page 87