General Trading Corporation, in No. 74-2245 v. Burnup & Sims, Inc., Appeal of John Randal McDonald in No. 74-1924, 523 F.2d 98, 3rd Cir. (1975)

523 F.
2d 98
GENERAL TRADING CORPORATION, Appellant in No. 742245,

v.
BURNUP & SIMS, INC., et al.,
Appeal of John Randal McDONALD, in No. 74-1924.
Nos. 74-1924, 74-2245.
United States Court of Appeals,

Third Circuit.
Argued April 21, 1975.
Decided Aug. 29, 1975.
Alexander A. Farrelly, Birch, De Jongh & Farrelly, Charlotte Amalie, St.

Thomas, V.I., for appellant General Trading Corp.
Alex Gonzalez, Gonzalez & Rodriques, Puerto Nuevo, P.R. Frederick D.
Rosenberg, Bailey, Wood & Rosenberg, Charlotte Amalie, St. Thomas,
V.I., for appellant John Randal McDonald.
Roger L. Campbell, Charlotte Amalie, St. Thomas, V.I., Frederick G.
Watts, Loud & Campbell, for Burnup & Sims, Inc., Seaboard Surety Co.
OPINION OF THE COURT
Before HASTIE, GIBBONS and HUNTER, Circuit Judges.
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.
2
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.
7
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, 1965, 112 Ga.App. 163, 144 S.E.2d 450. 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.
10
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 features and had
proceeded on the basis of the modified design only after McDonald had
approved it, first in general concept and then as shown in the fabricator's shop
drawings.
11
The district court, which sat without a jury, did not make a specific finding on
this disputed question of fact, but we read the court's opinion as implicitly
finding that McDonald was aware of and sanctioned the design of the roof for
the rear wing as it was in fact constructed.
12
Beyond this, it is agreed that McDonald had undertaken the responsibility of

certifying to the owner whether the contractor's monthly billings for progress
payments represented material and work duly supplied or performed. This
necessarily required periodic site observations by McDonald or some
professional member of his staff.
13
The construction work relevant to the present controversy was undertaken and
nearly completed during the spring and summer of 1969, and McDonald
periodically certified this work to the owner for payment. Indeed, it was not
until October 30, 1969, after the public authorities, spurred by citizen
complaints, had questioned the design of the roof in place, that McDonald
qualified his earlier certification of this work with a notice to the contractor that
the roof was improperly designed and pitched. By so doing he recognized that
his professional responsibility extended to the monitoring of this aspect of the
work. Whether he did not observe sooner the very low pitch of a substantial
section of the framework for the roof or, having observed it, chose not to
inform the owner or the contractor that Planning Board requirements were not
being satisfied, the district court reasonably concluded that McDonald's
conduct did not exhibit the care and professional judgment required of an
architect to whom an owner has entrusted certification of work for progress
payments. "(T)he standards of reasonable care, which apply to the conduct of
architects, are the same as those applying to . . . like professional men engaged
in furnishing skilled services for compensation . . .." See Peerless Ins. Co. v.
Cerny & Associates, Inc., D.Minn.1961, 199 F.Supp. 951, 953. Cf. Aetna Ins.
Co. v. Hellmuth Obata & Kassabaum, Inc., 8th Cir. 1968, 392 F.2d 472;
Nieman-Irving & Co. v. Lazenby, 1933, 263 N.Y. 91, 188 N.E. 265;
Restatement of Torts, 552. Here the finding of negligence is buttressed by the
fact that McDonald, acting for the landowner, was the professional who had
conducted the negotiations with the Planning Board that had culminated in the
hip roof requirement and the additional fact that his sketch of the required
modification was ambiguous.
14
McDonald's conduct has legal significance in connection with several of the

claims presented in this suit. In the original complaint the landowner seeks to
recover from the builder for economic loss allegedly sustained because of delay
beyond the agreed completion time in finishing the building. As a result of the
Planning Board's stop order, it was necessary to remove part of the roof and to
design and superimpose on the existing structure a wooden truss to support a
properly hipped roof over the rear section of the building. The additional time
required for this work caused the delay in suit. But on the present record it was
a permissible conclusion that this delay resulted from the architect's sanction of
the unacceptable roof design and his periodic approvals of work in progress that
disclosed the low pitch of the roof.
15
We have not overlooked the fact that the construction contract incorporated a
letter that stipulated generally that the reconstruction must satisfy Planning
Board requirements. But, as between the principal parties, the builder was
entitled to treat sanction of the low pitch of the rear roof by the owner's
architect as the owner's own approval. Cf. Beattie Mfg. Co. v. Heinz, 1906, 120
Mo.App. 465, 97 S.W. 188. Of course, the architect's tardy disapproval, after
the Planning Board had indicated dissatisfaction with the substantially
completed roof, came too late to affect the issue of responsibility for delay. The
landowner was properly denied recovery from the contractor for delay in
completion of the building.1
16
The district court allowed the builder to recover from the landowner on
"Change Order No. 6", which both parties executed after the stop order to cover
the work and materials required to modify the then practically completed roof
to conform with Planning Board requirements. We agree with the district court
that as "between the contractor and the owner, General Trading must bear the .
. . (added expense) resulting from the negligence of its architect". Moreover, as
the court properly added, "General Trading nonetheless does have the right to
recover damages from McDonald to the extent of its losses that were directly
caused by McDonald's negligence".
17
The district court accorded separate consideration to several small items that
were included in the claims of the parties. We have examined each of these
items and find no reversible error in their disposition.
18
Finally, McDonald claims that General Trading owes him $7,000 pursuant to
his unpaid billing for certain architectural work. Apparently this work consisted
of the design of interiors, particularly for the first floor boutique. We find no
disposition of this claim in the opinion or in the judgment of the court. It should
be adjudicated, either on the present record alone or with a supplementary
evidentiary hearing as the district court shall deem just and proper.
19
Accordingly, the judgment as entered will be affirmed and the cause remanded
for further proceedings and whatever supplementary judgment may be
appropriate on McDonald's claim against General Trading for services
rendered.
20
The costs of Burnup and Sims in this court shall be awarded against General
Trading and McDonald. However, as concerns the controversy between
General Trading and McDonald, neither shall be awarded costs as against the
other.
The district court also found on this issue that proof of damage was inadequate

General Trading Corporation, in No. 74-2245 v. Burnup & Sims, Inc., Appeal of John Randal McDonald in No. 74-1924, 523 F.2d 98, 3rd Cir. (1975)

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General Trading Corporation, in No. 74-2245 v. Burnup & Sims, Inc., Appeal of John Randal McDonald in No. 74-1924, 523 F.2d 98, 3rd Cir. (1975)

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523 F.

GENERAL TRADING CORPORATION, Appellant in No. 742245,

United States Court of Appeals,

Alexander A. Farrelly, Birch, De Jongh & Farrelly, Charlotte Amalie, St.

This appeal presents a controversy among General Trading Corporation, a

counterclaimed for a balance allegedly due on the construction contract. The

The burned-out building to be reconstructed and remodeled is located in the old

Late in 1968, General Trading decided to have its building reconstructed to

Because of the exigencies of time, even before a construction contract was

McDonald, acting for General Trading, undertook to modify the original

Beyond this, it is agreed that McDonald had undertaken the responsibility of

McDonald's conduct has legal significance in connection with several of the

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