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07/12/83 HERCULES CONSTRUCTION COMPANY v. C. J.

July 12, 1983

HERCULES CONSTRUCTION COMPANY, PLAINTIFF-RESPONDENT,
v.
C. J. MORITZ COMPANY, DEFENDANT-THIRD PARTY PLAINTIFF-APPELLANT-RESPONDENT
v.
JOHN F. STEFFEN ASSOCIATES, INC., THIRD PARTY DEFENDANT-RESPONDENT, AND WESTERN ENGINEERING & MANUFACTURING COMPANY, THIRD PARTY DEFENDANT-APPELLANT, AND LYON SHEET METAL WORKS, INC., THIRD PARTY DEFENDANT-APPELLANT



From the Circuit Court of the City of St. Louis; Civil Appeal; Judge Gary M. Gaertner.

Before Snyder, P.j., Dowd, Gaertner, JJ.

The opinion of the court was delivered by: Dowd

Plaintiff-respondent Hercules Construction Company (hereinafter Hercules) brought suit for breach of contract against its subcontractor, C. J. Moritz Company (hereinafter Moritz) to recover expenses it incurred as general contractor in replacing a supply air fan at the St. Charles Civic Center. In the court tried case, defendant Moritz impleaded John F. Steffen Associates, Inc. (hereinafter Steffen), Western Engineering & Manufacturing Company (hereinafter Wester), and Lyon Sheet Metal Works, Inc. (hereinafter Lyon), as third party defendants. At the close of Moritz' evidence, the trial court sustained Steffen's motion for a directed verdict and denied similar motions by Western and Lyon. At the Conclusion of all the evidence, the trial court rendered judgment on behalf of Hercules in the amount of $24,970.76. The trial court also awarded defendant-third party plaintiff Moritz judgment against both of the remaining third party defendants (Lyon and Western) in the amount of $8,161.60 each. We affirm.

The controversy involves the alleged faulty installation and performance of a supply air fan which was installed in the St. Charles Civic Center for that building's heating, ventilation, and air conditioning system (hereinafter called HVAC). Hercules was the general contractor for the construction of the civic center. Moritz was the subcontractor who was in charge of the HVAC system. Steffen was the consulting engineering firm hired by the city's architect to design and formulate the plans and specifications for the HVAC system. Western was the manufacturer of the fan in question and Lyon was the installer of the fan.

The agreement between Hercules and Moritz was embodied in a written contract which placed the entire responsibility for the HVAC work upon Mortiz. Article II of this contract, denominated "Subcontractor's Responsibilities," includes a specific paragraph covering warranties, quality of work, and defects. That provision reads as follows:

"The Subcontractor warrants that all materials and equipment furnished and incorporated by him in the Project shall be new unless otherwise specified and that all Work under this Subcontract shall be of good quality, free from faults and defects and in conformance with the Contract Documents. All Work not conforming to these standards may be considered defective. The warranty provided in this Paragraph 11.9 shall be in addition to and not in limitation of any other warranty or remedy required by law or by the Contract Documents."

In formulating its bid on the project, Moritz made available the specifications for the supply air fan to Combustion Kinetics Corporation (hereinafter Combustion), the locally licensed dealer and representative for Western, so that Moritz might obtain a price quote for a Western supply air fan. After receiving notification that its bid was accepted, Moritz issued a purchase order to Combustion for a Western Vaneaxial supply air fan per specifications.

The specifications provided that the supply fan could be either the type manufactured by Joy, a competitor of Whstern, or a type of similar specifications. The contract documents also set forth the specifications of the Joy fan: one capable of producing 40,000 cubic feet of air per minute at 6.3 inches of static pressure. (emphasis ours)

Western prepared shop drawings for the supply air fan it manufactures and submitted these drawings for approval to the project architect and to Steffen, the consulting engineers. Western's shop drawings indicated a fan producing 40,000 cubic feet of air per minute at 6.3 inches of total pressure. (emphasis ours) Steffen approved these shop drawings as being in conformance with the building specifications even though the shop drawings used total pressure while the specifications called for static pressure. At the time of the trial, Western could not determine whether it possessed information regarding the fan's specifications when the shop drawings were prepared.

The specifications specifically provide that the architect's approval of shop drawings shall not relieve the contractor of responsibility for any deviation from the requirements of the contract documents, nor shall the architect's approval relieve the contractor from responsibility for errors or omissions in the shop drawings. According to the agreement between Hercules and Moritz, the subcontractor (Moritz) is bound to the contractor (Hercules) by those same terms.

The specifications called for a fan which could be mounted horizontally, vertically, or at any incline. Lyon's foreman, who was in charge of installation of the fan, interpreted from these specifications that the fan could be installed in any fashion. Lyon's crew installed the fan with the device known as the vortex damper operator on the bottom side of the fan. In comparison with Western's diagram of the fan, the fan was inverted.

The City of St. Charles took occupancy of a portion of the building in April of 1976 and the HVAC system became operational in May of the same year. Witness Carl Austin, the building superintendent for the City of St. Charles, testified that there was trouble with the fan from the very beginning in 1976 and in early 1977 the wires in the motor exploded.

In 1976, Mr. John Flynn was in charge of Hercules' field operations at the St. Charles Civic Center construction site. He testified concerning three instances in 1976 when the fan failed to operate. On these occasions the fan's actuator linkage was found broken. Mr. Flynn further testified that he inspected the plans, drawings, and specifications and determined that the fan had been mounted in an inverted position. Mr. Keith St. Onge, Western's product manager, testified that the probable cause of the wires exploding was the excessive moisture in the motor. This moisture was not able to escape through the "weep holes" in the fan because these were located on top of the motor, due to the fan being mounted in an inverted position.

The Senco Corporation conducted a performance test of the supply air fan shortly after it was installed. The results thereof are known as a balancing report. According to the balancing report, the supply air fan was producing 33,273 cubic feet of air per minute while the specifications for the fan called for 40,000 cubic feet of air per minute. Moreover, the reading of 33,273 cfm was obtained at a total pressure of only 4.8 ...


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