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Bank of Broadway v. General Aluminum Door

JANUARY 16, 1967.

BANK OF BROADWAY, AN ILLINOIS BANKING CORPORATION, PLAINTIFF,

v.

GENERAL ALUMINUM DOOR & ENTRANCE COMPANY, A CORPORATION, JOHN C. LONG, INC., A CORPORATION, AND BOARD OF EDUCATION OF THE CITY OF CHICAGO, A BODY POLITIC AND CORPORATE, DEFENDANTS. BOARD OF EDUCATION OF THE CITY OF CHICAGO, A BODY POLITIC AND CORPORATE, THIRD PARTY PLAINTIFF,

v.

JOHN C. LONG, INC., A CORPORATION, COUNTERPLAINTIFF-APPELLEE,

v.

BOARD OF EDUCATION OF THE CITY OF CHICAGO, A BODY POLITIC AND CORPORATE, COUNTERDEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding. Judgment reversed.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 6, 1967.

This action was commenced by the Bank of Broadway, the original plaintiff, to establish a lien against the Board of Education of the City of Chicago, under a contract between the Board and John C. Long, Inc. for construction of a new school contiguous to an existing school building. The Board filed an answer, counterclaim and third party complaint naming as defendants Long, Long's surety, and certain other subcontractors who had also filed notices of liens against the same funds. The Board claimed damages of $22,038.57 against Long for repairs to the old School's boiler house resulting from damages to a sewer on the construction site and/or for a failure to properly shore the wall of the boiler house. Long filed a counterclaim against the Board seeking to recover $18,683.78 over and above the contract price for additional shoring and $9,229.70 for extra work in connection with the installation of heating and ventilating ducts. The Board's claim against Long and his counterclaim were heard by a Master who recommended that the Board not recover for repairs to the boiler house, and that Long recover for the duct work, but not for the shoring work. The trial court ruled against the Board's claim and entered judgment for Long on both the duct and shoring counterclaims. The Board brings this appeal contesting that part of the judgment which allowed recovery to Long for the shoring and duct work.

With respect to the shoring claim, the Board contends that Long was required by the contract to protect the existing school from damage by providing all necessary shoring, and therefore was not entitled to be paid extra for such work. The Board also argues that Long failed to prove the performance of any extra duct work over and above the contract requirements, and further that allowance of this extra would be in violation of the contract and state statutes.

We will first consider the circumstances surrounding Long's claim for additional shoring expense. The record shows that Long entered the successful low bid to construct a new school contiguous with and to replace an existing school, and the resulting written contract with the Board was agreed to on July 23, 1958. As contemplated by the contract *fn1 classes were held for 550 children in the old school while the new school was being erected, and until it was fit for occupancy. The plans required a 15-foot excavation with the east wall of the new school 2 1/2 feet from and parallel to the old school's boiler room. Prior to the opening of the school term Long dug the excavation, and to support or "shore" the old boiler room, left a sloping embankment or "berm" three to five feet from the west wall of the boiler room which sloped down to a depth of fifteen feet at a 30-degree angle. When school opened the toilets in the old building were turned on and water was found accumulating in the excavation and washing away part of the protective berm. It was then discovered that a private sanitary sewer of the old building was located at a depth of six feet, three feet west and parallel to the wall of the old boiler room, and was connected to a visible manhole sewer near the excavation site. The sewer had been pierced while drilling holes for the caissons as required by the Board's plans, the sewer not being shown on the plans. Temporary repairs to stop the flow of water and prevent the washout of the berm proved unsuccessful and the Board re-routed the sewer. As a result of the washout Long erected wood shoring to support the berm, and later at the insistence of the Board he agreed to and did install steel sheet piling. Long incurred expenses of $18,683.78 for this additional shoring and steel piling which he claims is work not provided for in the contract or "extra" work.

The Board contends that Long performed no extra work, but was required by express provisions of the contract to examine the site and provide all necessary shoring to protect the school from damage. Long counters that the Board's plans and specifications were defective; that the Board made positive misrepresentations as to the conditions he would encounter; and that the Board is chargeable with knowledge of the sewer and is liable for failure to disclose its existence and location. Long argues that the Board is liable for the extra work performed by him because the plans prepared by the Board's architect failed to disclose that there was a private sewer where the caissons were to be drilled and for its refusal to shut off its toilets so as to prevent further washing out of the supporting berm.

It is established that the old school was constructed around 1886 and that some years later the Board constructed the private sewer, which the Board belatedly discovered it had a diagram for, but which located the sewer within the boiler room walls. It is also undisputed that Long had no knowledge of the existence of this sewer and that it was not shown in the plans and specifications. The charges that at the time the contract was signed the plans were defective and that misrepresentations were made have to be considered in light of the provisions of the contract.

The contract specifically provided that the contractor shall visit and examine the site and all conditions thereon and take into consideration all conditions which may affect his work. The contract also recited that previous buildings had occupied this site and that the contractor was required to see that all water connections, drain and sewer lines were cut off and capped. In the contract he acknowledged that he had examined and familiarized himself with the existing conditions of the premises which would affect the execution of his work.

On cross-examination Long testified that he had only visited the site once for about a half-hour before he was awarded the contract. He said that knowing there had been buildings on that site he had looked principally for old foundations that had to come out, and then stated:

I looked at this boiler house and tried to see exactly where the building would be in regard to it. I also looked at the north end and just looked at the condition of the sidewalks, various flag poles and so on that had to come out. That is all that I can think of that I did.

We are of the opinion that Long failed to properly inspect the premises as required by his contract and that his failure to do so was the cause of his breaking into the Board's private sewer. While the plans did not indicate the sewer or show it to be elsewhere, it does not appear that there were misrepresentations upon which Long relied. Careful inspection would note the presence of manhole covers very close to the excavation site and in light of the warning in the contract proper caution would indicate a little digging which would have disclosed the troublesome sewer line. Under such an inspection provision the contractor was under an obligation to guard against damage from such cause, especially so where the condition could have been ascertained by the exercise of ordinary prudence. See McKay Engineering & Construction Co. v. Chicago Sanitary Dist., 348 Ill. App. 89, 108 N.E.2d 39. We agree with the Master that Long was required under his contract to do "all necessary" or "required" sheet piling, shoring and bracing of the embankment. We also believe, as did the Master who saw and heard the witnesses, that the claim that this was extra work is groundless under these facts and circumstances.

The second part of this appeal concerns the order allowing Long recovery for extra duct work in the amount of $9,229.70. The Board's theory is that Long failed to prove the performance of any extra work over and above his contractual requirements, and also contends that the Chancellor erred in allowing this claim because there was (1) no appropriation and no written authorization by the architect for this extra work, over and above the contract price, and (2) no approval of the extra work by the Board as required by section 34-19 of the School Code, and (3) no prior appropriation by the Board covering the extra, as required by section 34-49 of the School Code.

During construction of the school Long told the architect that the excavation and the concrete fill for the duct work which he was ordered to do was not included in the contract. The architect informed Long by letter that "the excavation for and the concrete fill around the duct work under the floor slab are part of the general work and shall be furnished by the General Contractor, John C. Long, Inc." Long claimed the sum of $16,991.04 for the extra cost of labor and materials in the excavation of trenches for duct work which it performed under protest and which it claimed as extra work.

The Master concluded that, while the contract did not specifically refer to excavating for duct work, excavation work in general was intended and that the general contractor was required to do all machine and hand excavating shown on the plans. The trenches for the duct work admittedly were shown on the plans. The Master found that Long was ordered by the architect's superintendent to dig the trenches for the duct work deeper and wider at some points than called for by the contract plans and drawings resulting in extra expense for labor ...


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