Masonry Magazine September 1964 Page. 8
The Law
Of Contracts
In Relation
To Mason
Contractors
By
Peer Pedersen
PART II
This is the second installment of Mr. Pedersen's address presented at MCAA's Summer Executive Board Meeting held during late July at Hershey, Pa. Take time now and read this important article. Place this and last month's issue in your business files for future reference.
Another important question in considering construction contracts is the liability of a contractor for defects in the work resulting from faulty plans or specifications. As a general rule, a contractor is not liable because, when he has performed the work in accordance with the plans and specifications, he has performed his contract. If defects develop in the work, it is not the fault of the contractor but that of the party who prepared the plans and specifications.
A contractor is required to follow the plans and specifications, and when he does so, he cannot be held to guarantee that the work as required by the owner will be free from defects, or withstand the action of the elements, or that the complete job will accomplish the purpose intended.
Thus, a New York court held that a contractor, who had agreed in his contract to furnish all the material and labor required to make the cellar of a building airtight, was no liable when dampness developed, since the specifications were furnished by the owner. The promise was not to make the building watertight, but to make it watertight by following the prepared plans and specifications. If he did not, he would risk liability for improper performance.
Where the owner undertakes to direct, and does direct the contractor, on how the work is to be done, and the contractor is forced to do the work in a manner contrary to the way in which he wanted to do it, and in spite of the protest by the contractor that work as being done was inadequate, the courts have held that the contractor will not be liable for defects in the work.
Where the general contractor brought suit against the subcontractor who broke through a concrete conduit and cut an underground cable, the court dismissed the claim on the grounds that the subcontractor had performed the work in accordance with the plans and specifications, and that the damages resulted from the failure of the plans to properly locate the conduit and cable.
If the plans and specifications are prepared by the contractor, however, he cannot escape liability for defects in the work resulting from faulty plans and specifications, since he not only is responsible for the way in which the work is perfromed, but also is the preparer of the plans and specifications. So, too, a contractor will be held liable for defects in the work that result from faulty plans and specifications where he has warranted their sufficiency.
Supose, however, you find yourself in the situation where a third party is suing you, after the owner has accepted the building, for damages for an injury caused not by defects in the plans and specifications, but by deviations from the plans and specifications caused by (Continued on page 11)
MASONRY
September, 1964