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General Trading Corp. v. Burnup & Sims Inc.

August 29, 1975



Hastie, Gibbons and Hunter, Circuit Judges.

Author: Hastie


HASTIE, Circuit Judge.

This appeal presents a controversy among General Trading Corporation, a landowner which undertook to have a burned-out building restored and remodeled; Burnup & Sims, Inc., a builder which did the work of reconstruction under contract with the landowner, and John Randal McDonald, an architect who rendered professional service during the course of the project. The landowner sued the builder and its surety, together with the architect, for damages alleged to have been caused by delay in the completion of the construction work. The builder denied responsibility for the delay and counterclaimed for a balance allegedly due on the construction contract. The builder also crossclaimed against the architect, asserting that he was personally liable for the value of extra work necessitated by his negligence, if the landowner should not be required to pay for it. Finally, the architect counterclaimed for a balance allegedly due from the landowner for his services in connection with the project.

The district court, sitting without a jury, denied the landowner's claim against the builder, found for the builder on its claim against the landowner and imposed upon the architect liability over to the landowner for most of the amount awarded to the builder. The landowner and the architect have appealed.

The burned-out building to be reconstructed and remodeled is located in the old historic section of the town of Christiansted on the island of St. Croix. No building can lawfully be constructed or reconstructed in that historic area without the approval of the esthetics of the structure, particularly its compatibility with the old Danish architecture of the neighborhood, by the Virgin Islands Planning Board.

Late in 1968, General Trading decided to have its building reconstructed to accommodate a fashion boutique, featuring a display of merchandise attractive to the tourist trade, on the first floor and rental space on the second and third floors. The parties all knew that General Trading deemed it urgent that the boutique be ready for occupancy at the beginning of the winter 1969-1970 tourist season, and a provision of the contract required completion late in 1969.

Because of the exigencies of time, even before a construction contract was executed, Burnup & Sims, the prospective contractor, and architect McDonald undertook preliminary work, including initial presentations of the proposed reconstruction to the Planning Board. Then, in March, 1969 the landowner and the builder executed a standard American Institute of Architects construction contract. Although McDonald was named in that contract as the architect for the project, he was not a signatory to the document and his testimony is that he was unaware that he had been so designated until the present controversy arose. However, it is not disputed that from March, 1969 until the completion of construction McDonald, both personally and through his professional staff, performed a variety of architectural services in furtherance of the project. These services were rendered at the request of General Trading which received and periodically paid McDonald's billings for his work.

The record is clear that one of McDonald's undertakings for the landowner was the preparation of plans, their presentation to the Planning Board and the Public Works Department, the conduct of negotiations with these agencies and the modification of plans as necessary to obtain governmental approval. Indeed, in his crossclaim for professional services, McDonald alleged that he "rendered architectural services only to General Trading Corporation culminating on Planning Board approval of the plans on 17 April 1969". Very early in 1969, the Public Works Department permitted work on the project to begin but directed that certain changes in design and detail be made and submitted to the Planning Board for approval. Particularly, the Board had advised McDonald that a "hip" roof should be designed and substituted for the combined "gable" and "shed" type of roof contemplated by the original proposal. McDonald correctly understood that to satisfy this requirement the pitch of the planes of the roof had to be "3 or 4 to 12", a rise of 3 or 4 feet for every 12 feet that it extended horizontally.

The building in question is roughly "L" shaped, the bottom of the "L" being a rectangular section fronting on Church Street, while the upper part of the "L" is a smaller rectangle extending to the rear toward Government House. As the reconstruction was conceived in the original thinking of the parties, a gabled roof would cover the front section of the building, while the rear section would be covered by a flat, or almost flat, shed roof. In contrast, a hip roof characteristically inclines upward from the eaves on every side of the building toward a ridge.

McDonald, acting for General Trading, undertook to modify the original concept of the roof to eliminate gables and substitute hips that would provide the "Danish type" of roof that is characteristic of the historic area and required by the Planning Board. In this connection, the in-house architect of the Board had prepared a sketch, an elevation apparently not drawn to precise scale, indicating the change from gable to hip and reciting the height "6 feet" as the estimated rise of the roof from eaves to ridge. McDonald then made a tracing of this sketch, eliminating the "6 feet" recital and substituting the phrase "as required" with reference to vertical rise of the hips. Detailed drawings of the original concept that combined gable and shed roof design, together with this new McDonald sketch of required modification, were placed in the hands of the contractor who, in turn, passed this data on to a manufacturer to prepare shop drawings and to fabricate the essential metal framework for the building.

McDonald has conceded that he understood that the Planning Board wanted the entire roof structure to be hipped so that it would show a pitch of 3 or 4 to 12 along each face. But the sketch he had prepared, copying the illustrative elevation drawn by the Board's in-house architect, showed a roof change from gable to hip, but without treating with particularity the roofing of the wing to the rear of the building. At best McDonald's sketch was ambiguous as to what was to be done about the roof of the rear wing. Cf. Covil v. Robert & Company Associates, 112 Ga. App. 163, 144 S.E.2d 450 (1965). Utilizing this sketch and the original plans for a gable and shed roof, the fabricator of the metal work prepared working drawings and designed a skeleton appropriate for carrying a roof over the rear wing pitched at not more than 1 to 12, though it could accommodate 3 or 4 to 12 hips over the front section.

McDonald testified that technically a roof area with a 1 to 12 pitch was hipped, since it was not quite flat, although he knew that was not what the Planning Board required. However, he also testified that the contractor never showed him the fabricator's working drawings. This testimony was explicitly contradicted by the contractor's construction manager and principal witness, Joseph Caudill, who testified that he had discussed with McDonald the modification of the roof to provide hips with moderate pitch over the front section while retaining a very low pitch for the rear wing, had later showed him the fabricator's detailed shop drawings that incorporated these ...

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