APPEAL from the Circuit Court of Lake County; the Hon. WARREN
FOX, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Anderson-Ross, Inc., as a subcontractor, filed suit against the general contractor, Scherrer Construction Co., Inc., the architectural firm of Orput-Orput, Inc., and the construction manager for the architect Marshall S. Stevens, to recover payment for the installation of a gymnasium floor in a grade school. Following a bench trial judgment was entered in favor of plaintiff and against the general contractor for $5180 and costs and Scherrer appeals. No judgment was entered against the other defendants.
In issue is whether the plaintiff performed in accordance with his agreement "to the satisfaction of the architect" and whether recovery may be had when no architect's certificate has been issued and the school board owner has refused to accept the work.
The record of the trial is before us on a stipulated report of proceedings, no actual transcript having been prepared. Robert E. Ross, the president of the plaintiff company, testified that Stevens was present as the representative of the architect during the installation of the flooring, had an opportunity to observe the work but made no adverse comment. He said that his corporation had been installing floors for fifteen years during which time between 300 and 400 of such floors had been laid. He explained the "Robbins lock-type floor system" which was the method he used. In February or March of 1971 he had the following conversation with Marshall Stevens:
"Q(by ROSS): What's the matter, MARSHALL?
A(by MARSHALL STEVENS): There are complaints of spaces between the boards.
Q(by ROSS): Sure there are a few but, you are bound to get them.
A(by MARSHALL STEVENS): Yes, BOB, it looks all right to me."
On cross-examination the witness testified that he did not return to the site after March of 1971 although the Scherrer Construction Company requested meetings.
Marshall Stevens testified as an adverse witness to his employment as a construction manager and to the fact that he was not a registered architect. He said he had a conversation with Ross at the site in the early part of 1971 but he could not remember whether he had told Ross that in his opinion the floor was typical and adequate and he would recommend payment. He identified a letter which he wrote to the general contractor on March 19, 1971, which states in part:
"We have reviewed your gym floor installation thoroughly and cannot recommend that the Owner accept and make payment until the current deficiencies are corrected. The floor throughout must have tight end joints and side horizontal joints no matter what humidity may exist in the areas. You are directed to remove all portions of floor and replace in manner to meet these requirements and all of normal requirements."
Stevens also identified a letter which he wrote to the school board on January 25, 1971, which included the following statement:
"Several specific locations were noted with cracks of 1/8" in width between boards. It was felt that normal expansion of boards in unheated months would help to close these gaps.
The Architect, Marshall S. Stevens, agreed to release of payment to Scherrer Construction Company as requested in their Periodic Estimate 12 which is 90% of wood floors retaining 10% or $1,590.00. This action automatically releases `hold action' of Orput-Orput letter to Scherrer Construction Company of January 8, 1971. This decision was based upon fact that General Contractor guarantees this floor for one (1) year and flooring ...