
    Dick Kelchner Excavating, Inc., v. Gene Zimmerman, Inc., et al.
    [Cite as Dick Kelchner Excavating, Inc., v. Gene Zimmerman, Inc. (1970), 25 Ohio Mise. 133.]
    (No. 134462
    Decided November 30, 1970.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Young, Pryor, Lynn, Strickland & Falke and Mr. Charles F. Young, for plaintiff.
    
      Messrs. Boesch & Boesch and Mr. Charles H. Boesch, for defendants.
   Bkenton, J.

This cause was tried to the court and has been submitted upon the evidence for determination.

I

At the commencement of the trial Kelchner moved to increase the demand for relief in the sum of $1,110.45. The court reserved its ruling thereon. This request was made because Kelchner believed that Zimmerman had, in August of 1967, agreed to pay half of the charges for extras on Brookside Park Section 1 and in consequence thereof Kelchner had issued credits to that extent. Zimmerman denied the arrangement and thereafter testified that he agreed to pay only one half of a $582.76 combined invoice. In accordance with the spirit and intent of Civil Rules 1(B) and 15(A) (B) and (C) and finding under all the facts and circumstances that Zimmerman would not and did not suffer any prejudice by the admission of evidence relating to the request to amend, Kelchner’s motion to amend should be sustained.

n

Kelchner is a contractor, and as such, entered into written agreements with Zimmerman, an owner and developer of unimproved land, to furnish labor and material to construct sewer, water and streets for two separate plats known as Brookside Park Section 1 and Brookside Park Section 2.

This case boiled down to a suit for “extras,” work and material furnished allegedly not required by the written agreements.

When the parties entered into the written agreements they knew that there would be nine months between the laying of the first course of pavement and the final course and that during this time the streets would be in use in the process of constructing dwelling houses on the adjacent lots. They also knew that this use in all common probability would result in some damage to the streets and curbing and that all thereof would have to be repaired and replaced and the streets cleaned before laying the final course of pavement.

The written agreements are silent with respect to imposition of liability for any so-called extras. Each party, however, did, as a principal, execute performance bonds to the public authorities of Montgomery County and the city of Dayton thereby undertaking the completion of the projects to their satisfaction.

Kelehner proceeded to and did make the necessary repairs to the streets, replacement of curbing and the cleaning of the streets to the satisfaction of the public authority, all preparatory to laying the final course of pavement. This was accomplished within the knowledge of Zimmerman and without any objection from him at any time.

Within due course the performance bonds were released and now Zimmerman concedes that he is indebted to Kelehner in the sum of $6,822.20 under the written agreements and thus the dispute is over the claim of Kelehner in the sum of $3,567.65 for cleaning streets, repairing streets and replacement of curbing.

Zimmerman introduced evidence without any objection that in March 1970 it was discovered that on lot No. 34 there had been a failure by Kelehner to install a sewer lateral and that this was installed at a cost to Zimmerman in the sum of $465.61.

in

Kelehner contends that, by custom and usage in the trade, the owner and developer bears the cost of furnishing the labor and materials for the matters in dispute. Zimmerman contends that, by custom and usage in the trade, the contractor bears the burden. The court finds that the evidence is inconclusive as to custom and usage in the trade under the particular facts and circumstances and thus neither contention has been established by a preponderance of the evidence.

Zimmerman further contends that the various items for curbing replacement and street repair were inadmissible because of the failure to establish whether Zimmerman caused any or all of the particular damage and in the absence of fault he is not liable to Kelehner. The evidence shows that each party used the streets during the nine-month period with Zimmerman having the major use. The evidence shows further that the replacement of curbing and repair to streets was made necessary because of damage occurring through the use thereof. There was no evidence of defective materials or workmanship with respect to the construction of the curbing and streets.

Kelchner contends further that as principals for the performance of the conditions of the joint bonds given by the parties they therefore occupy the relation of principal and surety as between themselves and that he should recover indemnity from Zimmerman as any other surety may from his principal.

Kelchner contends also that inasmuch as the agreements obligated him to furnish only a certain quantity of items at agreed unit prices he should be entitled to recover the reasonable value of the extras.

IV

Where the consideration is expressed separately for various units of the construction work the contract is entire but divisible and severable. Carrig v. Gilbert-Varker Corp., 314 Mass. 351, 50 N. E. 2d 59, 147 A. L. R. 927. Bianchi Brothers v. Gendron, 292 Mass. 438, 198 N. E. 767. Begardless of these and other authorities no precise or invariable rule can be laid down by which it may be determined whether a building or construction contract is entire or is severable or divisible. It is a question of the intention of the parties, to be discovered from the language employed and the subject matter and must be ascertained from the whole instrument.

Generally no express contract is necessary to give a right to recover for services not covered by the contract and rendered without objection where parties have expressly defined the work to be done and the amount to be paid therefor. Baylot v. Habeeb, 149 So. 2d 847; Boody v. Rutland & B. R. Co., 24 Vt. 660; Henderson Bridge Co. v. McGrath, 134 U. S. 260, 10 S. Ct. 730 ; Ohio Sand & Gravel Co. v. Whiteman, 19 Ohio Law Abs. 302; Worley Brothers Co. v. Marvis Marble & Tile Co., 209 Va. 136, 161 S. E. 2d 796. This rule, however, has application for the recovery of the reasonable value of additional work necessitated by a material change of specifications, mutual mistake of fact, defects in the plans and specifications, accident owing to the fault of the owner or his employees or an increase in cost of work or materials by the fault of the owner. The general rule does not apply where the loss is due to the destruction of or damage to the subject matter.

As has been indicated, Kelchner predicates his case in part on the proposition that the contracts are divisible and severable and therefore in the absence of any stipulation in the contract specifically fixing responsibility, as between the parties for destruction of or damage to the subject during the performance of the construction contract, without the fault of either party, he should recover for the replacement and repairs. This proposition of law applies only with respect to contracts to erect an entire structure and thereby the contractor may recover for the work actually performed. Anderson v. Quick, 163 Cal. 658, 126 P. 871; Keel v. East Carolina Stone & Construction Co., 143 N. C. 429, 55 S. E. 826, 53 A. L. R. 104, 115.

Moreover under a contract to do certain part of the work and other contractors are to do part of the work; or the contractor is to furnish the work and the owner is to furnish the material; and where the contractor has completely installed his part of the work and it has been damaged or blemished by other persons, not his employees, continuing with other construction, the contractor may under like facts and circumstances, recover on an implied promise to pay the value of what has already been done or on the theory that since the materials are wrought into the building by the labor of the subcontractor they become the property of the owner or principal contractor at once. Ottawa Plumbing, Heating & Air Conditioning, Inc., v. Moore, 190 Kan. 201, 327 P. 2d 1011; Butterfield v. Byron, 153 Mass. 517, 27 N. E. 667; Cook v. McCabe, 53 Wis. 250, 10 N. W. 507; Rayner v. R. J. Jones & Sons, 182 So. 2d 353.

The conclusion is inescapable that upon the facts and circumstances in this case Kelchner may not recover for extras upon the theory of divisible or severable contract, or upon the proposition that he contracted to do only a certain part of the work.

V

This leaves for consideration the relation between joint principals on a performance bond and the rights and obligations as between themselves arising from their undertakings.

Any principal upon a performance bond is unconditionally liable to perform in accordance with the terms and conditions thereof. Thus the principal is primarily and always liable, and may be pursued without reference to the surety. James v. West, 67 Ohio St. 28; Vilas v. Christopher, 8 Ohio Law Abs. 521. It has been held that as between themselves, coadministrators may be principals for the performance of the condition of the joint bond given by them, so far as it relates to each, and each may be a surety for the co-obligor that he will duly perform the condition required of him, to the extent that one may recover indemnity from the other as any other surety may from his principal. Eckert v. Myers, 45 Ohio St. 525.

Kelchner and Zimmerman by executing the several performance bonds became unconditionally jointly and severally liable to perform the necessary repairs, replacements and other work required to satisfy the conditions of the bonds.

The alleged additional separate charges for cleaning the streets may not be considered an extra and outside the scope of the contracts in the absence of an express provision therefor in the contracts between the parties and absence proof that Zimmerman caused an unusual or excess amount of dirt and debris to be deposited on the streets. It must be assumed under the particular facts and circumstances in this case that the ordinary costs for cleaning the streets preparatory to laying the second course of paving were part of the unit charges for laying the same absent proof to the contrary and absent a custom and usage in the trade that as such it is considered an extra payable by the contractee. Moreover, because of the contract arrangements had Kelchner refused to clear the street he would have been liable to Zimmerman for the reasonable cost of performing that function.

On the other hand this court is of the opinion that where the parties to a construction contract are each unconditionally bound as principals on a performance bond to make replacements and repairs to the curbing and first course of pavement because of damage thereto, without proof of the fault of either party and absence any stipulation in the contract fixing responsibility for the loss, and the owner-contractee observes the contractor perform the particular additional construction required without any objection or inquiry of any kind the owner-contractee is thereby obliged to indemnify the contractor for the reasonable cost of the additional work.

It would further appear that in this case Zimmerman as owner, developer and eontractee, as between the parties, has the primary liability to complete the projects in accordance with the conditions of the bonds and therefore any work performed by Kelchner outside the scope of the contracts and made obligatory by the conditions makes Zimmerman a surety for Kelchner to that extent.

Accordingly Kelchner should recover the sum of $2,289.39 from Zimmerman which sum the court finds is the reasonable value of the work and materials furnished in replacing curbs and repairing streets.

Finally the court is of the opinion that, in accordance with the spirit and intent of the Rules of Civil Procedure, Zimmerman should be given leave to amend and file an answer and counterclaim for $465.61 before judgment is entered based upon the uncontested evidence concerning the matter and as heretofore set forth whereby the recovery of Kelchner may be offset to that extent.

Further final judgment should be entered in favor of the plaintiff Kelchner and against defendant Zimmerman in the sum of $8,645.98 and for costs.

Judgment accordingly.  