Worley Bros. v. Marus Marble & Tile Co.

Citations: 209 Va. 136; 161 S.E.2d 796; 1968 Va. LEXIS 206Docket: Record 6679

Court: Supreme Court of Virginia; June 10, 1968; Virginia; State Supreme Court

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In the case of Worley Brothers Company, Inc. v. Marus Marble and Tile Company, Inc., the Supreme Court of Virginia addressed a dispute regarding contract obligations and specifications in a subcontract for tile installation. The trial judge determined that the subcontractor, Marus, was not provided with an addendum that altered the original mortar specifications. Consequently, Marus was entitled to rely on the initial specifications and was awarded compensation for work that differed in nature and cost from what was initially agreed upon, as the defendant, Worley, benefited from the additional work.

The plaintiff's claim was based on an open account, and the court found no error in admitting the original contract specifications and related documents as evidence. Although Worley had paid the full contract price, the trial court granted Marus additional sums for rework and substituted materials, and the defendant did not contest the correctness of the account in the lower court. It was noted that deviations from the specifications were either waived or deemed minor, with Worley expressing satisfaction with the work and attempting to convince the owners to accept it as completed. The materials used were found to be superior and more expensive than those originally specified.

The trial court's judgment in favor of Marus for the total claim amount of $14,725.75 was upheld, and the appeal by Worley was denied. The key determination was that Marus had not received the critical addendum before bidding or before significant portions of the work were performed, impacting the contract execution and compensation owed.

An agreement was established on December 6, 1962, where Worley contracted Marus to install ceramic and quarry tile for $78,000, adhering to project specifications by the architects. By December 5, 1963, Marus had laid 75% to 90% of the tile in the jail dining area. During an inspection, architect Miles Cary Johnston noted that Lumnite was used for grouting instead of the specified black Furnane joint compound. Johnston informed Worley and Marus's foreman, Joseph F. Still, that all joints needed to be redone with Furnane. Still argued that his specifications did not require Furnane and claimed he was unaware of Addendum No. 1 that mandated its use. After being told that Marus’s company should have the addendum, Still insisted they did not have it, leading to Marus halting all work on the project.

Marus testified that he based his bid on the original specifications provided by Worley and never received Addendum No. 1. Worley maintained that he followed standard procedures to ensure subcontractors received complete specifications but could not confirm that Marus received the addendum. He became aware of the issue with the grout material only after Johnston's inspection. Subsequent discussions and correspondence sought to convince the city to accept the work done with Lumnite and reduce costs due to the use of a less expensive material. Worley described the error as an "honest mistake." The specifications required quarry tile installed with Portland cement and a layer of "neat" cement underneath. Marus used Portland cement for the setting bed but chose Lumnite, deemed a high-grade Portland cement, as the grout, despite being able to use Portland cement. Lumnite is darker, more expensive, and more stain-resistant than ordinary Portland cement, whereas black Furnane, which is more costly and superior in quality, was specified to meet the city's requirements. Efforts to have the city accept Lumnite instead of black Furnane were unsuccessful.

On April 3, 1964, the architect informed Worley that certain joints needed to be replaced with black Furnane, indicating that non-compliance with the contract was unacceptable. Worley requested Marus to rectify the issue, but Marus claimed he never received the relevant addendum and denied responsibility for the mistake. Worley threatened to engage a local subcontractor and deduct costs from Marus's payments. After correspondence, Marus agreed to replace the Lumnite cement with black Furnane but reserved the right to seek additional payment for this work, as it was outside the original contract. He also expected extra pay for using black Furnane in other areas of the project. Worley did not contest Marus's conditions but insisted on immediate corrective action. Marus completed the work and demanded an additional $14,725.75 for unforeseen costs associated with the materials and labor, which Worley refused to pay, prompting this legal action.

The trial judge resolved factual disputes in favor of Marus, affirming that he did not receive Addendum No. 1 and was unaware of its existence when submitting his bid. The original specifications required tile to be set in Portland cement, with vertical joints designated for black Furnane. The addendum changed the requirement to filling all joints with black Furnane, representing a significant alteration. Worley claimed Marus's mistake was unilateral and a result of negligence, asserting that Marus had the means to clarify the specifications. However, the architect acknowledged the need for the addendum to clarify his original intent, which was not clearly communicated. Mr. Marus, with extensive experience, testified that he understood vertical joints to refer to base and wall joints, not floor joints, indicating no misunderstanding on his part.

Joseph F. Still, with forty years in the tile business, defined "vertical joints" as joints located at the base against the wall and stated he had never heard of floor joints referred to as vertical joints. Bruno V. Chiari, a witness from Universal Atlas Cement Company, echoed this, associating "vertical joint" only with wall tile. The specifications for the tile work were clear and understood by Mr. Marus and others in the trade, and there was no requirement for Marus or his company to seek further clarification or compare the specifications with surplus sets on file at the construction site. Marus and his team were entitled to rely on the specifications provided by Worley for both bidding and performing the contract.

Evidence indicated that the architect's use of "vertical joint" was derived from a catalog of the Atlas Furnane Company, which promoted its products through a pamphlet illustrating the use of a red Furnane bed for tile setting and black Furnane as grout. The pamphlet depicted "vertical joints" between tiles, but this usage did not change the common understanding of the term in the tile and marble trade, which distinguishes between floor and wall tiles. The law, as stated by Mr. Justice I'Anson, holds that a contractor is not liable for damages resulting from defects in plans and specifications provided by the owner unless there is evidence of negligence or an express warranty regarding their sufficiency.

A contractor who bids on a project is bound only by the specifications provided at the time of bidding, not by additional specifications that were not disclosed. In *City of Elgin Joslyn*, the court allowed a contractor to recover costs for work not included in the original plans, affirming that the contractor's obligations are determined by the plans and specifications available during bidding. This principle is reinforced by multiple cases, emphasizing that contractors have the right to rely on the specifications given to them, which form the basis of their bid. If a contract explicitly incorporates plans and specifications, those documents govern the terms and scope of the contract. Additional burdens on the contractor outside of what was originally specified require further compensation. In *Adams Tri-City Amusement Company*, a contractor was compensated for extra work due to defects in the plans and specifications provided by the architect. In the case involving Worley and Marus, the court found a lack of agreement on work scope, as changes occurred without a formal addendum. As Worley benefited from the additional work, Marus is entitled to recover for the reasonable value of that work, with the trial court identifying a mutual mistake of fact between the parties.

No fraud was found on the part of Worley; however, Marus is entitled to recover the reasonable value of its work due to a mistake. The trial court's decision, supported by law and evidence, upheld Marus's right to compensation, rejecting Worley's challenge regarding the admission of the written contract. The contract incorporated all plans and specifications but did not include Addendum No. 1, which Marus was unaware of. The trial judge ruled that Marus's situation did not constitute a unilateral mistake, attributing the extra work and expenses to Worley's failure to provide the addendum. Evidence concerning the specifications, addendum, and various documents related to the contract was deemed admissible.

Worley contested the judgment amount, claiming it was based on defective workmanship and was inflated. However, no serious objections to the evidence were raised during the trial. The court stated that the total amount paid to Marus, plus the claim amount, was fair compensation for the work performed at Worley's request. Minor deviations from the specifications were noted, but the trial judge considered them negligible and either approved or waived. Worley acknowledged Marus's work was performed acceptably and attempted to have the city approve it.

Disputes regarding the use of Lumnite over Portland cement were addressed, with the judge noting that the deviation did not render the work unacceptable, as Lumnite was more costly and of superior quality. The evidence supported Marus's claims for costs incurred in removing cement and installing Lumnite joints, with no contradictions found. The trial judge refrained from speculating on alternative scenarios regarding the materials used. Overall, the evidence supported the findings, and the trial court's judgment was affirmed, with no reversible errors identified.