Expanded Metal Fire-Proofing Co. v. Noel Construction Co.

Citations

• 87 Ohio St. (N.S.) 428

Syllabus

<p>Principal contract made, part of sub-contract — As to inconsistent provisions in two contracts — Those in sub-contract prevail— Question of waiver of provisions of contract — Effect of additional plans and drawings — Consent of all parties equivalent to written waiver, when — Liquidated damages provided in both contracts — Will not conclude sub-contractor, when — Charge to jury as to same — Law of contracts.</p> <p>1. Where a principal contract is adopted and made part of a subcontract, all of the provisions of the former are binding on the parties to the latter, so far as they are consistent therewith. As to inconsistent provisions in the two contracts, those of the subcontract will control.</p> <p>2. Where the principal contract for a building has been made part of a sub-contract in relation thereto, a provision in the former that no alterations shall be made except on the written order of the owner or his agent, the extra amount to be paid being stated therein, is binding on the sub-contractor unless otherwise provided in the sub-contract.</p> <p>3. Such requirement will be held to have been waived by the parties when alterations have been made with knowledge and participation of all concerned, the evidence of which is clear and convincing, no fraud being shown.</p> <p>4. Where plans and drawings are made part of a contract which contains such a provision as to alterations, and additional plans and drawings are afterwards prepared (which require extra work and material) with the written approval of the owner thereon, signed by his authorized agent, and which work and material is done and furnished by a sub-contractor with the knowledge of all concerned, the additional plans and drawings so approved, will be held to be the equivalent of a written order, and a waiver of a more formal one.</p> <p>5. Where liquidated damages are provided for, in both a principal contract and a sub-contract, on account of delays, a settlement b3r the owner and principal contractor