
    No. 447
    BERRY, EXE., v. POLISH WHITE EAGLE BLDG. CO.
    Ohio Appeals, 7th Dist., Mahoning County
    No. 574.
    Decided March 31, 1924
    355. DAMAGES — Damages for defective flooring in construction of a building is question of fact for the jury.
    297. CONTRACTS — Liability under building contract for cost of heating system based on construction of contract is question of law.
   The action in the court below was brought by the Polish White Eagle Bldg. Co. against J. A. Berry for breach of contract for construction of a theater for $17,400.00, which amount was paid in full to Berry. The building company claims that the contractor did not complete the building as required by the contract, and brought action for damages. Berry died and the cause was revived in the name of his executrix.

Attorneys — Frank S. Breen, for Berry; Jos. W. Sharts, for Building Co.; both of Youngstown.

A judgment was rendered for plaintiff for $1000.i0'0 for delay, $250.00 for defects in the second floor construction and $3156.00 for construction of the heating system. On motion for new trial, the judgment was modified and the $1000.00 allowed for delay was eliminated. The defendant prosecuted error and two questions raised:

1. Damages for defective flooring.

2. Defendant’s liability for the cost of the heating system required by the building inspector.

The specifications which were a part of the building contract provided that the laws of the state and the city of Dayton concerning theaters were to be considered a part of the contract and a violation of them were at the contractor’s risk. The Court of appeals held:

1. The question as to damages for defective flooring is one of fact for the jury, and the judgment was not contrary to the manifest weight of the evidence.

2. The question of the contractor’s liability for cost of heating system is one of law, based on the construction of the building contract, and by reason of the contract, the burden was upon the contractor to install the heating apparatus in accordance with the building code.  