Contractor's Performance Must be Workmanlike

by James R. Keller

This article appeared in St. Louis Construction News & Review, p. 11, November-December, 2003.

Contractors must perform their work, including the selection of materials, in a workmanlike manner even when their contract does not cover this requirement, a Missouri Court of Appeals for the Eastern District recently reaffirmed. Workmanlike means work that is "completed in a skillful manner and is non-defective." The case isJones & Turner, Inc. and Woody Bogler Trucking Co. v. Elmer Senevey and Eric Senevey b/d/a Elmer and Eric Senevey Construction Co., No. ED81853 (Mo. App.), decided September 16, 2003.

Construction contracts often specify in detail the contractor's level of performance. Many contracts, however, including the one in Jones, do not set out the degree of skill and competence required of the contractor. The Jones decision reemphasizes the importance to a contractor of selecting proper materials and product to ensure that the work is indeed workmanlike.

Jones & Turner and Woody Bogler Trucking were two companies that needed a building to keep clay dry for their businesses. They described their needs to Senevey Construction, a contractor, by saying they wanted a metal building that was tall enough for trucks to fit inside, mobile so it could be moved when the clay was depleted, and sturdy enough to last about ten to twelve years.

They entered into a written contract for Senevey Construction to construct such a building for $28,500. They later increased the contract price to $29,000 with a slight change in the scope of the work to make the building a little taller and wider.

To achieve the scope of work, Senevey Construction purchased a "building kit" for the building from Moniteau Machine & Manufacturing, Inc. Senevey had never before purchased a kit from Moniteau.

The contract included specifications that required: "Pour a 5' wall 8" thick with a 2' dead man at each truss leg, setting on a 8" footing. The two end walls will be completely open. Sides will have tin 14' down from the top. On your level lot."

The building kit arrived without any plans. Representatives of Moniteau, upon inquiry, informed Senevey Construction that plans were not needed. Based upon this information, Senevey proceeded to assemble the building, without plans, in a manner it thought was correct.

In addition to no plans, the kit was missing important materials, including bolts needed to attach the trusses, angled sheeting for the side walls and trim sheeting for the roof. Senevey obtained substitute materials from various sources to complete the job. In at least one instance, Senevey deviated from the kit in order to solve a particular problem that arose during construction.

Senevey completed the building and the two businesses paid Senevey in full for its work. About four months later, on January 1, 1999, four inches of snow with some ice fell onto the building. The next day the building collapsed in the center.

The building could not be salvaged. The two businesses hired Roger Verslues, a licensed engineer, to inspect the collapsed building and determine what went wrong.

Verslues obtained a set of plans for the building from the engineering company that had originally prepared the plans. An engineer from that company testified at the trial that he discovered considerable differences between the sizes of material called for in the plans as compared to the actual building kit provided by Moniteau.

In addition, Verslues observed two to three significant deviations from the plans that affected the structural stability of the building. He noted about ten total deviations between the plans and the building's as-built condition.

The businesses sued Senevey; Senevey sued Moniteau but then later dismissed Moniteau without prejudice from the case. The trial judge-there was no jury-found in favor of the two businesses and awarded the full contract amount of $29,000 plus costs.

Senevey argued on appeal that there is no implied warranty for a building that is attached to the land and that the trial court had specifically stated that Senevey did nothing wrong in putting the building kit together. The appellate court rejected these arguments and held that "the law imbues construction contracts with an implied warranty to perform the work in a workmanlike manner."

The court concluded that Senevey's work was not workmanlike. The building kit that Senevey chose, the court decided, was inadequate, as evidenced by a collapsed building only a few months after construction. Significantly, the appellate court focused on an inferior product rather than poor construction.

Contractors assume enormous responsibilities when they agree to build something. As this case shows, it often is the contractor's selection of materials more than its construction techniques that leads to problems.

James R. Keller is a partner at Herzog, Crebs & McGhee, LLP, St. Louis, MO, where he concentrates on business litigation, construction law and ADR. He also is an arbitrator with the American Arbitration Association and a mediator.