Delong v. Mission Marble Works

CASHIN, J.

Defendant Mission Marble Works, a corporation, on March 29, 1923, entered into a contract with the Bank of Italy to manufacture and install the marble work in a bank building, which was being erected by the latter at Visalia. The work was to be done according to certain plans and specifications which were referred to in the contract. The plans were prepared by the architect employed by the 'bank, and the specifications provided that the contractor should prepare and furnish shop drawings of the marble work, and that these should be checked by the architect and returned to the contractor with his approval or corrections. The contractor prepared a set of shop drawings, but the evidence shows that only one of these, called the typical floor plan, and upon which were shown the marble tiled floor, the border and wainscoting of the second, fourth, and fifth floors of the building, was submitted to the architect. The latter drawing as shown was a blueprint, and on May 3, 1923, before the plaintiff had any connection with the work, the same was returned by the architect to the contractor with a number of corrections made thereon. The evidence further shows that after the latter date and before May 28, 1923, the contractor, in order to enable the plaintiff to submit a bid for setting the marble, delivered to him the shop plans, including a copy of the typical floor plan mentioned, but without the architect’s corrections being shown thereon. On May 31, 1923, the plaintiff entered into a contract with the defendant contractor whereby he agreed, for the sum of $4,500, to install the marble in the building as called for by the specifications and shown on the plans, all to the satisfaction of the- architect. In this connection it was alleged by the plaintiff, and the court found, “that prior to the execution of said contract of May 31, 1923, defendant, Mission Marble Works, furnished the plaintiff certain plans prepared by said defendant, which said plans purported to show in detail the dimensions, character and location of all marble to be installed in said building, and that said defendant, for the purpose of inducing

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plaintiff to enter into a contract for installing said marble at as low a price as possible, then and there stated to plaintiff that said plans so furnished him by it were in all respects true and accurate and corresponded exactly with the official plans of said building.” It was further alleged and found that the plaintiff, believing and in reliance upon the representations that the plans furnished him were correct, entered into the contract for the price mentioned, and that the latter was the lowest possible cost of doing the work had the representations been true. It was also found that plaintiff entered upon the performance of the contract, but that the plans furnished by said defendant did not correspond with the official plans of the building, and the marble furnished by the defendant—and which was cut in accordance with the plans furnished to the plaintiff—could not be installed therein; that because of this impossibility the original contract between plaintiff and defendant contractor was abandoned, and a new agreement entered into between them by which the plaintiff was to be paid the value of his work and labor in installing the marble in accordance with the official plans of the building. The court found that the plaintiff was compelled to recut and repolish a large part of the marble furnished by the defendant contractor; that much was furnished only after long delay; that the value of the work done by plaintiff was $6,769.94, of which the sum of $4,100 had been paid, and also that the bank, which was served with a verified notice of the claim, was indebted to defendant contractor under its contract in a sum more than sufficient to pay the balance unpaid to the plaintiff. Judgment was entered accordingly against the contractor and also against the bank, which was joined as a defendant, and both defendants have appealed.