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Fifteenth Ave. Christian Church v. Moline Heat.

DECEMBER 17, 1970.

FIFTEENTH AVENUE CHRISTIAN CHURCH, PLAINTIFF-APPELLANT,

v.

MOLINE HEATING AND CONSTRUCTION CO., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Rock Island County; the Hon. ROBERT J. HORBERG, Judge, presiding.

MR. PRESIDING JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 12, 1971.

In this case plaintiff seeks to recover damages from the defendant for an alleged breach of contract. Plaintiff claims that the defendant was obligated to install a "one hour fire resistive" ceiling in the boiler room of the church by virtue of the provisions of the Uniform Building Code of the City of Rock Island and that the defendant failed to do so. The case was tried before the court without a jury. The court found in favor of the defendant and this appeal follows.

Plaintiff, the Fifteenth Avenue Christian Church, decided to replace the existing furnace in its church building with a new one. It engaged a firm of professional engineering consultants which prepared specifications, blueprints and contract documents. The defendant bid on the work pursuant to the specifications and was awarded the contract. The specifications made no reference to the walls or ceiling of the boiler room. After the work was completed the same was accepted by the church and final payment was made to the defendant. Some months later the Rock Island city fire marshal called the attention of the church to the fact that the ceiling in the boiler room did not meet the requirements of the building code that the same be one hour fire resistive. In March, 1969, about a year after the completion of the work and the final payment, defendant received a letter from an attorney representing the church demanding that the fire resistive ceiling be installed. The defendant has refused to install the same and the church filed this suit.

As previously stated, the specifications submitted to the defendant for the preparation of its bid made no reference to a fire resistive ceiling or walls. However, the contract prepared by the agent of the church and executed by the defendant after the acceptance of its bid provided that the specifications consisting of the general conditions and technical provisions comprised part of the contract. The general conditions provided:

"The contractor shall give all notices and comply with all laws, ordinances, rules and regulations bearing on the conduct of the work as drawn and specified. If the Contractor observes that the drawings and specifications are at variance therewith, he shall promptly notify the Engineer in writing and any necessary changes shall be adjusted as provided in the contract for changes in the work. If the Contractor performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the Engineer he shall bear all costs arising therefrom.

The technical provisions provided:

"A. This contractor shall comply with the State, County, City and Township Codes, Board of Fire Underwriter's and all other rules and regulations having jurisdiction over this installation.

"B. If there is a discrepancy between the codes and regulations having jurisdiction over the installation and these specifications, the Codes and regulations shall determine the methods or equipment used.

"C. If the drawings and these specifications do not comply with all Codes, the Contractor shall submit with his proposal the extra price required to make the system shown on the drawings comply with the Code."

The Uniform Building Code of the City of Rock Island provided:

"Every room containing a boiler or central heating plant which burns gas as fuel shall be separated from the rest of the building by not less than one hour fire resistive occupancy separation . . ."

Plaintiff contends that although the fire resistive ceiling was not specifically mentioned in the specifications or the contract, the provisions of the Uniform Building Code constituted a part of the contract and the defendant's failure to comply therewith constituted a breach of contract.

At the trial the defendant, over the objection of the plaintiff, introduced evidence by a consulting engineer and an architect to show certain customs and usages of the building trades in the Rock Island area. The evidence was to the effect that the provisions in the specifications requiring that the contractor shall comply with all laws, ordinances, etc. was a standard provision and refers to the work specifically included in the contract. If the plans and sepecifications prepared by the engineers did not specifically provide for the installation of a particular type of walls or ceiling in the boiler room, it would not be within the realm of the work to be done by a heat contractor to install the same. The laws and ordinances referred to in the standard provisions related to the laws and ordinances governing the type of work to be done — in this case the heating and piping regulations as ...


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