ARK.] SMALLW006 PETTIT-G-ALLOWAY' CO. 379 SMALLWOOD V. PETTIT-GALLOWAY COMPANY. 4-2990,
OpiniOn deliveied May 8, 1933: 1. CONTRA6M—INSTALLATION. OF WATERWORKS.—Where a contractor, having examined the preinisei where he Proposed to install waterworks; and knoWing 'that . the other relied on his 'judgment, agreed to furnish the materials . and install the system and plumbing in a workmanlike Manner, he impliedly warranted that the system would give reasonable satisfactory service. 2. CONTAAUT S— INSTALLATION OF wATERwoRics.-:-Where cbntractor, having agreed to furnish materials and -to install a waterworks. system in workmanlike manner, furnished an inadequate storage tank, the buyer could- deduct : from the contract price the cost. of a larger tank and the installation thereof. Appeal from Saline:Chancery Court; -Sam . -W. Gar-ratt, 'Chancellor ; reversed. ••
- 380 SMALLWOOD y. -PETTIT-GALLOWAY C . [187 STATEMENT BY THE COURT. Appellee company brought suit against appellant -for the amount claimed to be due for furnishing materials and construction of a waterworks system for -her farm house near the Nineteenth Street pike, between Little Rock and Benton. • A deep Well was drilled on the farm, and a gas engine attached to the pump. Sometime thereafter she decided to install plumbing in the house; and on August 12,1929, entered into a contract with Pettit-Galloway Company, appellee herein, to install the waterworks system and plumbing arid other materials, for •which she agreed to pay appellee '$646. Among the' items which- appellee agreed to furnish and : install was a '300-gallon storage tank. After the sYstem was installed, it was found that the tank was too small, and appellant had to btfy a 1,000- gallon tank and install it at her own expense; $243.07: The contract provides all work to • be cOmpleted • in a workmanlike manner and guaranteed free of all defective material and workmanship. .A part of the 'plumbing fixtures were not installed and certain extras were added, and this suit was brought to recover $626.58. In the answer appellant set up that she had been compelled to pay $243.07 to put the systein in working order and offered to pay the suit of $362.83, balance. Pettit, of the appellee firm, visited and examined the premises and wrote appellant a letter on August 12, 1929, saying: ."We propose to furnish the material and labor_ necessary to install the following_ plumbing in . your residence on the Nineteenth Street . Pike, for the net sum of six hundred forty-six dollars ($646)." Among the items particularly specified therein is the f011owing: "Storage Tank. Furnish and install in pump house and connect with your pumping system one 300-gallon galvanized iron storage tank. Run pipe from pump house to residence and connect with fixtures specified above and put in four pipe hydrants. The piping from pump .house to hydrants 'to be 1 1 /2-inch galvanized -pipe. One sill cock to be placed on the front wall."-
ARK.] SMALLWOOD V. PETTIT-GALLOWAY CO. 381 The following guarantee Was contained therein : "All work to be completed in a workmanlie manner and guaranteed free of defective material or workmanship." . Pettit, president of appellee company, testified he had 'been engaged in the plumbing business between 30 and 35 years. Had a . contract with Mrs. Smallwood in Saline County. That they, did the plumbing and furnished: the supplies as they agreed to do. The work was done in accordance with the contract, and,Mrs: Smallwood .is indebted to them in the sum of$626.58. . Jones,. the, treasurer of the company, testified, that he was manager and treasurer of. the .company, and the account as filed was . the correct amount due from Mrs. Smallwood. Mayer , testified he was a :plumher and, installed the plumbing covered by the contract in a workmanlike manner as it should have been and in accordance with the contract ; .and had been .engaged in : the plumbing business about 20 -years. Pettit, being recalled, testified 'that they ,furnished extras , as shown by the account., The extras were ordered by the appellant and installed; by Mayer. They gave credit for the: Vogel toilet net installed, $64.80. . When they got into the work,,they found the ground was too low to get a flow into the . septic : tank which they abandoned and gave credit for. Gave credit for the return , of the water tank, $85, , because she had installed another tank arid asied them • 'to • take ' 'it back. •-• ettit-:• 6-al , l oWay Corn-pany furnished the fixtures and hodiht them from the N. 0. Nelson CoMpariy, and alSo stated she selected them herself a g he had nothing to de -With the, selection, Testified that certain iteMS Were not' in .66 , c . onitaCt. Appellant testified g he did not wish to eyade • the bill , at all. That inth . e beginnin , g.she• told ,Mr. , Pettit she didn't think a 300-gallon tank would Work, and he assured her that a 3004allon tank was ample: • After it Wa g installed she wrote Mr. Pettit and fold him about' the eon-, dition, that the outfit WoUld not fldsh The toilet twice. They had a 320-foot .deep Well and' a 4-inch, pipe maybe 185 feet long, which-Mr. Pettit changed te a two-inch pipe and the, motor pump pulled it , off the foundation, and she
382 SMALLWOOD V. PETt -IT-GALLOWAY Co. [187 hEfd to 'have that : fixed: The tank was too knall, as she Wrote Mr. Pettit and asked him to come and take it out. He sent Mayer ont several timeS, and' he -Werke& on it and tried to -get it to -Work satisfaCtorily, but it didn't work, and she then bought' the 1,000-gallon tank' ireth Camp Pike and had it installed, and with' the other items she had to purchase, it' dOst $243.51. She ordered an eXtra stove back for which they charged her $20. The lank from Cainp Pike' cost $80, the hauling $6.60 'and completely installed cost $24351. :She furnished Mr. Pettit a statethent of the cOst . of the installation of this tank and dedticted the 'amOunt therebf . frOm the aineunt due him under the contract and offered to paY bird' the balance, $362.83. She stated she bought the 1,000-gallon tank because the other was not ; large enough, and was imPractical to use. She also 'made eiplanations abOnt some of the other matters. She had to 'have some of the pipe changed as the drain was at the wrong end and the pipe would not drain. Mr. Pettit selected the 300-gallon tank and she tom him it was teo small to Use to begin" 'with. The tank put in by Mr. Pe'ttit did of work, the pressure wouldn't stay in, and 'she charged PettitLGal: loway Company With $50 for the installation of the 1,000- gallon tank, the whole athonnt 'charged to the company for failure to perform the cOntract in a Workmanlike manner being $243, as claimed. • One witness ,testified that he thought, when appellee designaied the kind of materialS for conStructing the' waterworks, that it was done with a view of using elec: tricity for operation instead ot a gas engine. Appellant, however, and another witness both testified-that Mr. i p et-tit knew that electricity was not to be used, but only the gas engine, etc.; and she also testified that electricity :is now used for lighting in the house, kit the waterworks plant is still being operated by the gas engine first stalled, and the service has been very satisfactory since the installation of the 1,000-ga4on tank. The kart allowed as credits on the account $57.27 fof installation of the hydrant in the stock let and the item of $32.04 for installing' the tank and the drayage, and
ARK.] SMALLWOOD V. PETTIT-GALLOWAY CO. 383 rendered judgment for $539.67 for appellee, from .which decree this appeal is prosecuted. Verne McMillen, for appellant. W. R. Donham, for appellee. • KIRBY, • J., . (after stating the facts ).. Appellant- insists that the court 'erred in not finding her entitled to a deduction from the price for materials and installation of the waterworks system in the residence as indicated in her statement of the amount required to put it in a usable condition With the 'purchase of the larger tank as shown to be necessary for its praCtical operation. . Appellee . examined the premise§ and determined what materials were necessary to be furnished and did the work of installatiOn of these materialsinto the water: works system, guaranteeing it should be done in a workmanlike manner, and the warranty was necessarily implied that the materials used would be reasonably lit for the purpose for which they were intended, appellee knowing when the proposal was made that appellant had no information abont such materials and. the construction of the plant, and that . she' was:neces , sarily relying upon the. judgment of appellee for the,right materials to be furnished and the work , properlr done in order to-upply and distribute the water through said system. . . The law implies that; where chattels or :machinery are sold for a particular purpose and the purchaser knows nothing about such materials or their-use, he necessarily relies on the judgment and good faith of the yendor that the articles pfirchased . are Teasbnably fit for the purpose for which they are 'intended, the law . implying the warranty that they are of such character. McCaskey Register Co. v. -McCurry, 181 Ark. 649, 26 S. W. (2d) 1108 ; Dyke y . Iltagdalena,:171 Ark. 225, 283 S. W. 37,4 ; Western, Cabinet (6 Fixfure Co. v. Davis,_ 121 Ark. 370, 181. S. W. 273. When there is an agreement that the work, for which the materials were agreed to be and- are furnished by the contractor, shall be completed in a workmanlike manner, it 'covers not only the. construction and installation, but also the system used to accomplish the result desired aud contracted for. There was a waterworks system to be
384 SMALLWOOD V: PETTiT-GALLOWAY Co. [187 installed by appellee on preMises that had already been inspected by it for distributing and carrying water for domestic use throughout the premises from a well already dug, and the contractors are bound to the construction of such a system under the agreement that it shall be done in a workmanlike rammer, and will, upon completion, give reasonably good and satisfactory service, since he knew what was to. be done, the result to be accomplished, and that the manner or method of accomplishing the desired result was left to his judgment, knowledge and experience.' The law will import into the contract an -implied agreement that the waterworks. or system of distributing the water will be proper and suitable for•the purpose for which it was designed, namely, the proper distribution of the water through the house and premises, it being a contract 'for The doing of certain work -to accomplish . certain re s. ults. Miller v. Winters, 144 ,. .N. Y. Supp. 351. The te§tiraony shows 'that the materials for construe: tion of the• Waterworks were- suggested and selected by appellee, who was -familiar 'with the construction of such systems, and appellant -had as- much: right to expect rea: sonably satisfactory . 'service from this plant when it was completed as though it had already' been completed and sold to appellant for such .use ass it was proposed to be put to in AS construction under the contract. The. testimony shows 'the service, rendered . was not reasonably satisfaetory because of either wrong construction or the wrong selection of materials for construction by the aP- - pellee, who was experienced in such matters 'and-had the sole 'selection of materials to be used, knowing- that appellant was altogether unfamiliar with such matters. The preponderance • of the testimony discloses that the waterworks as construeted by appellee were inade: quate, and did not distribute the water througholit the premises as appellant under her contract had the right to • expect would be done ; and that appellee was notified of this fact, and finally, not, remedying the condition, appellant . had to install certain other machinery, tanks, etc., for securing the service she was entitled- to expect 'under the contract made.
The chancellor erred in not allowing her credit on the contract price for tbe cost of the larger tank and the . installation thereof, which should have been deducted from the contract price. The cause therefore must be reversed, and it will be remanded with directions to allow the credit of appellant for $243.51 and render judgment for the balance due under the contract, $362.83. It is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.