Petition for Writ of Certiorari — Fiocchi v. Robert G. Regan Co.

JOHN F. DAVIS, GLERK

Supreme Court of the United States.

9 aes € 2

ROBERT G. REGAN CO., a corporation,

; ° Respondent,

ws.

CAESAR A. FIOCCHI and CHARLES FIOCCHI, co-

partners, d/b/a Caesar Fiocchi Company, and SEA-

BOARD SURETY COMPANY, a corporation,

Petitioners.

4

\

PETITION FOR A WRIT OF CERTIORARK.TO

THE SUPREME COURT OF ILLINOIS

—

KeNNETH S Lewis,

Suite 1734

7 South Dearborn Street

Chicago, Illinois,

: Attorney for Petitioners.

Lowe. B. Komi,

WituiaM Levinson,

Suite 2110 : >

77 W. Washington Street

Chicago, Ilinvis

Of Counsel.

The Scheffer Press, Ine—-ANdover 38-6850

INDEX

PAGE

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INDEX TO APPENDICES

Appendix A =

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Appendix B— ;

Opinion of Appellate Court of Illinois, 2nd Dis-

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CITATIONS.

Wilson v. United States, 221 U.S.°361, 31S. Ct. 538,

Oe” rl a. | |) Sennen eeMrmen UF |

People v. Ryan, 410 TIL 486, 103 N.E, 2d 116, (1952)... 10

IN THE

SUPREME COURT OF THE UNITED STATES

Octoser TERM, A. D. 1964.

No,

ROBERT G. REGAN CO. a corporation,

oy cane ut,

Us.

_CAESAR A. FIOCCHI and CHARLES FIOCCHT, co-

partners, db a Caesar Fiocchi Company, and SEA

BOARD SU RETY COMPANY, a corporation,

2 Petitioners.

“

PETITION FOR A WRIT OF | RTIORARI TO -

THE SUPREME COURT LINOIS

To the Honorable, the Cleef Baslier, and the Associate

Justices of the Supreme Court of the United States:

Caesar A. Fioechi and Charles Fiocchi, ca-partners do-

ing business as Caesar Fioechi Company, and Seaboard

Surety Company, a corporation, pray: that a writ of cer-

‘tiocari issue to review a judgment of the Supreme Court

of Tilirois entered in the above entitled case on Maren 16,

1964, denying petitioners leave to appeal to the Supreme

Court of Hlinois from a judgment of tie Appellate C ourt

of Illinois, 2nd district, entered on December 6, 1963..

=~

CITATIONS TO OPINION BELOW

The opinion of the Appellate Court of Illinois, 2nd dis-

trict, is reported in 44 Ill. App. 2d 336, 194 N. E. 2d 665

(1963). There was no opinion in the Supreme Court of

Tilinois. ;

JURISDICTION

The /jodgment of the Appellate Court of Illinois, 2nd

district, was entered on December 6, 1963. The opinion —

is printed in Appendix B accompanying this Petition. The

bo

jurisdiction of this Court is invoked under Title 28 U.S.C.

1254 (1).

* QUESTIONS PRESENTED

1.. Whether. the Supreme Court ‘of Illinois erred in deny-

ing petitioners leave to appeal on March Toi 1964.

from a judgment of the Appellate Court «! Tllinois,.

2nd district, entéred on December 6, 1963, ‘ioc:

a directed verdict and judgment of the Circuit Court

of Lake County, I}inois, in favor of respondent and ,

against petitioners in the amount of $11,295.15 en-

tered on June 26, 1962.

[t is respectfully submitted that error was committed

by the trial judge in directing a verdict against peti-

- tioners and denying their motion for new trial filed

July 26, 1962 (Abstract of Record—Pages 14. 15 and

16). The basis alleged for error is that the trial judge

denied petitioners access to certain records of the Fed-

eral Housing Authority that they- had subpoenaed for

use at the trial by way of subpoena duces tecum.

=

THE STATUTES INVOLVED

‘The statutes involved are Amendi.-nt XIV, Sect. 1,

Constitution of the United States (due process); Ch. 110,

Ill. .Rev. Stat. See. 62 (subpoenas). Botn the foregoing are

printed in Appendix A, infra.

f . §TATEMENT OF THE CASE

Respondent, Robert G. Regan Co., a ge neral contractor

jin the construction industry, filed suit against Caesar A.

Fiocechi and Charles Fiocehi, co-partners, doing business as

Caesar Fiocchi Company in the Circuit Court of Lake

County at Waukegan, Illinois on December 22, 1960. The

Fioechi brothers conducted a mason contracting business

as co-partners in Highland Park, Illinois and were joined .

as partners in the suit eta eh their surety, Seaboard

’ Surety Company, who had written the performance bond

under the construction contract made the subject of the

action.

Robert “G. Regan Co. brought a two count complaint

‘against the Fiocchis and their surety, Seaboard Surety

Company, alleging failure to perform a masonry subcon-

tract for the brick work on certain residences. constructed

by Robert G. Regan Co. at the Glenview Navaf Air Station.

Glenview, Illinois. The specific failure of performance al-

leged was a material deviation in installing wall ties bind-

ing the veneer to the framing of the buildings as ealled

for by the specifications ( Abstract of Record, pages 1-5).

It was alleged that the secatie work was buckling on the

buildings.

The Fioechi brothers and Seaboard Surety Company in

their answer admitted the deviation in the placement of the

wall ties but alleged that the breach was trivial and not re-

lated to the damage that had arisen to the buildings ( Ab-

ae? oe

stract of Record, pages 6-8). It was alleged in the answer

that the falling away or buckling condition of the’ brick

work arose through the fault-of Robert G. Regan Co., it |

being ‘the theory of petitioners that the real cause, of

damage to the buildings arose through both improper de-

_ sign and the use of inferior lumber r setting up a shrinking

force that pulled away the veneer.

The case came to trial before a jury in ‘June of 1962.

After Respondent had put on his case, Petitioners’ counsel

opened his defense by calling the president of Respondent

Company as an adverse witness. After hearing testimony

from only this witness the trial judge directed Petitioners

to make an Offer of proof, which offer of proof was denied

and the juyy was directed to return a verdict and judgmert

in favor of Respondent. This directed verdict and judg-

ment was entered against Petitioners and. in. favot of Re-

spondent in the amount of $11,296.15 on June 26, 1962.

(Abstract of Record, pages 12-13). |

Prior to the commencemént of the trial, Petitioners and

Respondent also it is believed caused to be served upon the

Federal Housing Authority certain subpoenas. Petitioners’

subpoena is set both in form and substance below :

>

—i5—

No. 74417

CIRCUIT COURT LAKE COUNTY, ILLINOIS

Robert G. Regan Co., a corporation vs. Caesar A. Fiocchi, .

et al : ,

| Subpoena Duces Tecum |

a: Federal Housing Authority at 36 South Wabash —

Avenue, Chicago 3, Illinois -

State of Illinois, Lake County—ss.

The Peoplt of the-State of Illinois to the Sheriff of said

- County —Greeting: We Command You to Summon Federal

Housing Authority, by its duly authorized agent and keep-

-er of records if he shall be found, in your County, pers on-

ally to be and appear before the Circuit: Court of said

County, on the 25th day of June 1962, at the Court House

in Waukegan at the hour of 9:30 a.m., and to bring with him

and produce at the time and place aforesaid, to be used as

evidence, certain instruments of writing purporting to be

all records, correspondence, photographs, reports, writings,

and documents pertaining to construction of a Wherry

Housing Development under Title VIII of, the National

Housing Act as amended, known as -FHA Projec { No. O71-

80009 then and there to testify, and the truth to speak, con-

cerning all and singular those things of which he may have

knowledge, or the said instruments of writing doth import

of, and concerning a certain suit now pending and undeter-

mined in the said Circuit Court, wherein Robert G. Regan

Co., a corporation plaintiff and Caesar A. Fiocchi and

Charles Fiocchi, co-partners, d/b/a Caesar Fioechi Com-

pany, and Seaboard Surety Co., a corporation defendants.

to testify.on the part of the said Caesar A. Fioechi et al.

© And this he shall in no wise omit under penalt’ of what

the law directs; and have yvou'then and there this writ,

i

—_ § =.

with an indorsement thereon’ in what manner you shall

have executed the same.

Seal.

| Witness Stephanie Sulthin, Clerk of said Circuit Court,

and the seal thereof at Waukegan, Illinois this 21st day of

June A.D., 1962, Stephanie Sulthin, Clerk

I, Lowell B. Komie, having been first duly sworn upon

my oath state that on the 2Ist day of June, 1962, at the

hours of 3:00 P.M., I served the Federal Housing Authority

at 36 South Wabash Avenue, Chicago 3, Illinois, by hand-

ing a copy of this Subpoena Duces Tecum to Joseph Lyons,

agent.

/s/ Lowell B. Komie

Seal.

In putting on its case, Respondent called one Erith Olsen

as a witness. Olsen testified that he was the FHA inspector

on the job and had refused to give it final certification due

to the faulty condition of the veneer work. The coritract

between the owner and Robert G. Regan Co. required ae-

ceptanée by FHA before final payment to the general con-

tractor. The FHA inspector also testified that in his opinion

the condition causing the veneer “to come loose resulted

from the Petitioners’ failure to properly install wall ties as

provided by the specifications.

It is Petitioners’ belief that Inspector Olsen appeared on

behalf of Respondent in answer to a subpoena served upon

him or the Federal Housing Authority by Respondent. -

In any event, he was the only official of FHA who ap-.

peared at the trial and it was Petitioners’ belief that he

or. some other official of FHA would also: be present at.

the trial to produce the records requested by Petitioners’

Subpoena Duces Tecum at such time that Petitioners com-

a poe

menced their defense. The documents requested in the

Subpoena Duces Tecum were necessary to Petitioners de-

fense to determine whether the decision reached by In-

spector Olsen as testified to-by him in behalf of Respondent

was in any manner fraudulent, unreasonable or arbitrary.

Petitioners had no intention of calling Inspector Olsen as

a witnessgbut merely sought to inspect his file on the project

and to use such documents as might be relevant to im-

peach his conclusion through the testimony of Petitioners’

own expert witnesses.

In the short interval that passed subsequent to the

testimony of Inspector Olsen as a witness for Respondent

and prior to the commencement of Petitioners’ defense,

Petitioners contacted ‘the hag al office of FHA and re-

newed their request that t ocuments made the subject of

their Subpoena Duces Tecum be produced at once. Peti-

tioners were told that the documents would he produced but

that they were in a warehouse apd some difficulty was

being incurred in locating them. Whereupon, on June 26,

1962, Petitioners were required ta commence their defense

at bar without recourse to the documents subpoenaed and

were almost immediately after the commencement of their

defense ordered by the trial judge to make an offer of

proof, said offer thereupon being denied and the jury di-

rected to bring forth a verdict and judgment against Peti-

tioners. At no time during the trial were the documents

requested in Petitioners’ Subpoena Duces Tecum produced

by the Federal Housing Authority nor was cause shown

for their non-production or objection made to the subpoena

itself. . |

On July 26, 1962 Petitioners filed their Motion for N yew

Trial and raised therein as an allegation of error the failure

of FHA to produce the subpoenaed docunients (Abstract of

: —8—

Record, pages 14 and 15, para. 6). The trial court denied

the Motion for New. Trial (Abstract of Reeord, page 16).

Appeal was perfected by Petitioners to thie ‘Appellate

Court of Illinois, 2nd District and on December 6, 1963

the Appellate Court entered an order affirming the judg-

ment. of the Circuit Court of Lake County (Abstract of

Record, page 53). In its opinion, which is set forth in

Appendix B, infra, the Court commented on the fact that

Petitioners made no attempt to show that the FHA de-

cision was unreasonable, arbitrary or fraudulent and con:

sequently were bound by the decision and determination

of FHA. |

On December 30, 1963. the Appellate Court of [linois,

2nd District, denied Petition for Rehearing (Abstract of

Record, page 95).

On March 16, 1964, the Supreme Court of Illinois denied

Petition for Leave to Appeal.

FEDERAL QUESTIONS

‘It is alleged that the failure of the Federal Housing

Authority to ‘produce records and documents specified in

the Subpoena Duces Tecum served upon its agent in Chi-

eago, Hlinois on June 21, 1962 by Petitioners for produc-

tion and delivery to the. trial court has resulted in a

deprivation of Petitioners’ property without due process

of law (Constitution of the United States, Amendment

XIV, See. 1, Appendix A). It is also respectfully submitted

that in denying Petitioners access to these records and

~ documents the Circuit Court of Lake County, Hlinois. so

far departed from the accepted and usual course of judi-

cial proceedings as to call for an exercise of the Court's

ower of supervision (Rules of the Supreme Court of the

United States, Rule 19, 1(b)).

The stage of the proceeding at bar at which the alleged

Federal question was first raised by Petitioners was upon

the filing of their Motion for New Trial in the Trial Court

on July 26, 1962 (Abstract of Record, pages 14 and 15,

para. 6). The trial court denied the Motion for New Trial

(Abstract of Reeord, page 16). The Motion for New Trial

thereupon was abstracted and the error preserved in the

record before the Appellate Court, 2nd District and Su-

preme Court of Illinois (Abstract Of Record, pages 14 and

15, para. 6). The alleged constitutional deprivation and

resultant federal question were further specifically raised

. and argued in Petition for Rehearing before the Appellate

Court of Illinois, 2nd District (pages 3 and 4). Petition for

. Rehearing was denied by the Appellate Court of Illinois,

2nd District on December 30, 1963 (Abstract of Record,

page 93).

REASONS FOR GRANTING THE WRIT

It is clear that under Illinois law, Petitioners as a

matter of right had authority to cause a Subpoena Duces

Tecum to be issued from the Cireuit Court of Lake County,

Illinois for service upon the Federal Housing Authority in

Chicago for: production of those documents and records

Petitioners believed relevant to their presentation of an

orderly defense. Ch. 110 TIL Rev. Stat., Sec. 62. (Appen-

dix A). It is also evident from the language of this section

of the Illinois Civil Practice Act that Petitioners were not

required to obtain an order of court prior to issuance by

the clerk of the Subpoena Duces Tecum.

In Wilson v. United States, 221 U.S. 361, 31S. Ct. 538,

a5 L. Ed. 771, (1911) a president of a private corporation

refused to produce certain corporate records before a New

York City Grand Jury in response to its Subpoena Duces

—

Tecum. He was committed by the New York Cireuit Court

for contempt and on appeal to the Supreme Court of the

United States, the judgment of the Circuit Court was af-

firmed. Mr. Justice Hughes delivered the opinion of the

Court and had occasion to discuss therein the traditional

use of the writ of subpoena duces tecumn, saying at 221

US. 31,372: .* . .

“The power to compel the production of doeu-

ments is, of course, not limited to those cases where it

is sought merely to supplement or aid the testimony

of the pefson required to produce them. The produe-

tion may be enforced independently of his testimony,

and it was held long since that the writ of subpoena

duces tecum was adequate for this purpose ... The

right to resort .to means competent to compel the pro-

duction of written, as well as gral) testimony seems

essential to the very existence and constitution of a

Court of common law, which regeives and acts. upon -

both descriptions of evidence and could net possibly

proceed with due effect without them. ...”

The statement of Mr. Justice Hughes that ‘the right to

‘production of written testimony is essential to the exist-

ence of a Court of Jaw indicates that the Petitioners

tight to issuance and return of their subpoena duces

tecum is a basic procedural right and therefore would

he protected under the Fourteenth Amendnint of the

Constitution of the United States (Amendment XIV. See.

1, U.S. Constitution, Appendix A). Both Wilson v.

United States and People v. Ryan, 410 TIL 486, 103 NE.

* 2d 116 (1951), a case also involving the refusal of a

corporate officer to produce documents requested by a

subpoena duces tecum issued by a grand jury, illustrate

that the right to production of written testimony by sub-

poena duces tecum.is so basic to the orderly procedural

administration of our courts that failure to comply with

the writ will be punishable by contempt.

*

£

mt

prey | pres

Wilson v. United States, also* indicates that it is not

necessary under a subpoena duces tecum that the person

returhing the writ be sworn as a witness and his oral

testimony taken. The writ@of subpoena duces tecum is

regarded as an order for the production of documents and

these must be produced by. a respondent to the writ re-

gardless of whether his testimony is to be taken orally.

Therefore, Petitioners had a right to production of the

documents and records requested in their writ regardless

of whether they intended to call FHA inspector Olsen as

a witness, If, they intended to use the documents and _re-

ports to be introduced through the testimony of their own

expert witnesses to impeach Inspector Olsen, this was + their

right.

The Appellate Court of Ilinvis, 2nd District, in’ its

opinion at 44 Hl App. 2d 336, 194 NE. 2d 665 (1963)

emphasized that petitioner made no attempt to show In-

spector Olsen's detision to be unreasonable, arbitrary or

fraudulent and therefore held that they were bound by the

decision in absence of any showing to the contrary,

At 194 N. EF. 2d 665, 668, it is said, Appendix B mira:

: Defendante-inade ho attempt to show that the

PHA‘s decision or determination that the wall ties

should have been installed in accordance with the

speciications was unreasonable, arbitrary or fray-

dulent, nor even any attempt to explain why the wall

ties were not so installed ino the. first place, Con-

sequently -defendants avere bound by the decision and

determination of. FILA that the brick would have

to be taken down, the wall ties put in according to

specifications, and the brick relaid 2.0."

It is respectfully submitted that had the Federal Hous-

ing Authority complied with Petitioners’ subpoena duces

feceum, Petitioner would have had an opportunity to

‘—12-— °

explain why the decision of .Inspector Olsen blaming

them for the damage to the buildings was unreasonable.

arbitrary or fraudulent. Without recourse to FHA's ree-

ords relating to the project, petitioners would have little

hasix to lay the foundation for impeachment of. Inspector

Olsen's previous testimony.

CONCLUSION.

“For the foregoing reason the writ of certiorari should

be granted.

Respectfully submitted,

Kexxetu S Lewis |

Suite 1734

7 S.. Dearborn St.

Chicago, Hlinois

Attorney for Petitioner

Lowell B. Komie

William Levinson

Suite 210,

77 W: Washington St.

Ahicayo 2. Minois

Of Counsel.

te

—— jg —

APPENDIX A

—

Amendment XIV, Sect. 1, Constitution of the United

States: 3

- “All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citi-

zens of the United States and of the State wherein

they reside. No state-shali make or enforce any Jaw (|

which shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State deprive

any person of life, liberty. or property, without due

process of law: nor deny te any person within its

jurisdiction the eqnal protection of the laws.”

Ch. 116, Tl. Rey. Stat. Sect, 62 (subpoenas) :

“The clerk of any courf ip which an action is pend-

ing shall. from,time to time, issue subpoenas for those

Witnesses and to those counties in the State as may be

required by cither party... Every clerk who shall re

fuse so to.do shall be -fined, at the diseretion of the

court, in any sum not to exceed $100, An order of

court is not reqiired to obtain the issuance by the

clerk of a subpoena duees tecum. For good cause

shown, the court on motion may quash or modify any °

subpoena or in the case of a subpoena.duess tecum,

‘condition the denial of the motion npon payment in

advance by the person in whese behalf the subpoena

ix issued of the reasonable expense of producing any

item therein specified.”

£9_ —

APPENDIX B

Opinion of the Appellate Court.

McNeat., J.—

The plaintiff. Robert G. Regan Co.. was the general

contractor for the construction of. certain buildings for

Glenview Naval Homes, Ine. Plaintiff: entered into’ a

subcontract with the defendants, Caesar A. Fioechi and

Charles Fiocehi, to do all masonry werk ino accordance

With the plans and specifications of the contraet. Plain-

tiff sued defendants for their failure and neglect to con-

form strictly with such plans and specifications, and also

sned the Seaboard Surety -Company as surety for the

faithful performance of the subcontract. At the close of

plaintiff's evidence, the Cireuit Court of Lake County

denied certain offers of proof by defendants. and then

directed the jury to return & verdiet against defendants

for $11,296.15. The court entered judgment on. the directed

verdict, and defendants appealed.

The general contraet was for construction of a number

of buildings at the Glenview Naval Air @tation. known as

the Johnson Court Wherry Housing Development. The

project was financed by. FHA insured financing under

Tithe VIED of the Netional Housing Act. as amended, and

known as FHA Project No. 07180009. On November 21,

155, the defendant. partners made ao subeontreet with

the plaintiff corporation te perforin all masonry work

under the prune contract per plans and specifications for -

113.000, ON portion of the prime contract relating to

masonry construction of exterior walls provided :

“Brick vencer facing on wood frames shall be at

east Ot. inches thick, laid on running bond exeept

Where stacked bond is shown. and securely attached

to the structure swith corrosion resistant ties spaced

not farther apart than 160 inches vertically and. 16

inches horizontally." 2

‘

E ann 0 ame

The subcontract referred to the plans and spe¢ifications

and recited that the ‘subeontractor hitd examined them

and knew the contents thereof. By the subcontract defend-

ants agreed to conform strictly with all the terms and

conditions of the plans and. specifications in the per-

formance of the subcontract, and agreed to replace, upon

demand of. contractor and at subcontractor’s-expense, with

proper materials, any materials determined by contractor

or owner to be unsatisfactoy within ong year from the

date of final completion ‘of the prime contract and the

final inspection and approval of FIA. Subcontractor also

agreed to indemnify and save the contractor harmless

from any and all claims, damages of liabilities of what-

ever nature which might result from performance of the:

subcontract, and agreed that in,the event of the subeon-

tractor’s default in the performance of the subcontract

in any respect as required by contractor, the contractor

might perform the work and furnish materials therefor,

or imight have other parties do the same, and the subcon-

. tractor agreed. to paw any excess in cost over the subeon-

tract agreed price for completion by the contractor. The

subeontractor also guaranteed to remove ard remedy any

defeets arising within one vear of the completion of the

project, and agreed that payvinent should not constitute

acceptance of any inproper work or performance.”

The subcontractor also agreed te comply with all regula:

tions and require:ents of the FHA. Among these require-

nents were provisions that the FELA shall have the right

to interpret the contract documents and to determine eom-

plianee therewith; that all items of constructions shall be

subject to final acceptance by the FEA: and that the con-

tractor shall acceptably correct any defeats duc to. faulty

materials or workmanship which appear Within a period

of one year following substantial completion.

The subcontractor was paid in fuil upow the first inspec

tion by FHA, but within the one-year period the inspector

determined that the wall ‘ties were not attached as re-

quired by the specifieations and the brick walls on many

of the buildings constructed’ by defendants commenced to >

Rey ae

bulge. The inspector notified the owner, Glenview Naval

Homes, to correct the condition by installing ties aceord-

ing, to specifications. Thereupon the owner called upon

plaintiff to correct the condition and in turn plaintiff di-

rected the defendant subcontractor to install. the ties.

It was admitted in defendants” answer and established

by the evidence that defendants did not comply with the

provision of the prime contract requiring brick veneer to

be securely attached to the structure with corrosion re-—

sistant ties spaced not farther apart ‘than.16 inches ver-

tically and 16 inches horizontally. According to the evi-

denee, on many building the wall ties were 4 foot. on

_ center instead of 16 inches, and there was no place on any

of the 16 buildings where wall ties were found to, be in

place 16 inches vertically and horizontally.

It was stipulated that the FHA inspector prepared a

report after his inspection of the work and sent the report

to Glenview Naval Homes, Ine., that in the report the ‘in-

spector stated that the brick would have to be taken down

and the ties would have to be put in according to specifi-

‘cations and the brick put back-up to satisfy the FHA on

the project, and that the report was forw arded by Glen-

view Naval -Homes, Ine. to the plaintiff and <ubsequently

by the plaintiff to the defendants. It was further stipu-

lated that a series of letters went from the plaintiff to the

defendants notifying them of the absence of wall ties,

demanding that. defendants do the work, stating that the

-owner and Glenview Naval Homes demanded that the ties

be installed, and notifving defendants that if they did not

do the work plaintiff would he forced te do the work itse If;

and in. that event plaintiff would charze defendants for

the expense entailed in so doing; that the demand made

was to take off the brick, install the ties and put the brick

back up; and that all this was done prior to the commence-

ment of any work by the plaintiff company.

Defendants refused to remove the bricks and remedy

the omission of wall ties. Thereafter plaintiff removed

the brick, installed the ties to the satisfaction of the FHA

and replaced the brick. According to uncontradicted evi-.

—

dence in the record it cost plaintiff $11,296.15 to remedy

defendants’ faulty work. Defendants refused to pay for

this additional expense and — commenced. this

action.

During the trial counsel for defendants made an_ offer

to prove by one of the defendants that he estimated the

cost of taking the buckled brick off, placing wall ties 16

inches on center, and rebricking where brick had. been

removed, at $6000. Defendants’ counsel also offered to

prove by an architectural envineer and a contractor that

in their opinions the walls would have bulged whether the

provisions of the contract as to-wall ties had been strictly

complied with or not. Objections to these offers of proof

on the grounds that the estimate and opinions were imma-

terial were sustained, and the offers denied. Defendant

offered no further evidence and the court directed a verdict

for the amount of the juagment entered against them.

_ Defendants’ motion for a new trial was denied, and this

appeal followed. nares .

Contractors have no right to depart from working plans

made a part of the contract. If they do sc, it is at their

peril, and they became guarantors-as to the strength: and

safety of the struetures. The parties were clearly entitled

to contract to have the buildings erected in accordance

with certain plans and specifications. An express coritract

admit: of no departure from-its terms, and the: subcon-

tractors could discharge themselves from liability only by

constructing the buildings in aecordance with the plans -

and specifications, unless a deviation was jnutually agreed

upon. Clark et al. v. Pope et al, 70 Mil. 128, 132. Where:

the parties to a building contract agree that an architect

shall pass upon the work and certify as to the payments

to be made, his decision is binding and can only be at-:

* tacked for fraud or evident mistake. Hennessy v. Metzger,

152 Hi. 505, 515. When a sub-contract provides. that the

commissioner of public works is to decide all questions ax

to’ the prope r pe ‘rformance of the work, the determination

of the commissioner is binding on the sub-contractor and

can only be avoided by showing that the commissioner

J

— -

acted unreasonably, arbitrarily or fraudulently, and the

onus of showing such facts is upon the sub-contractor.

Brownell Imp. Co. v. Critchfield, 197 Ill. 61, 71.

In the instant case defendants agreed to conform ‘strictly

with all terms and conditions of the plans and_ specifi-

cations in thé performance of the’ subcontract, and _ to.

comply with the FHA’s regulations and requirements, in-

cluding the FHA’s. interpretation of contract documents

and determination of compliance therewith, and including

a provision that all items of construction were subject to

final acceptance by FHA. Defendants made no attempt to

show that the FHA’s decision or determination that the

wall ties should” have been installed in accordance with

the specifications was unreasonable, arbitrary cr fraudu-

lent, nor even any attempt to explain why the wall ties

were not so installed in the -first place. Consequently de-_

fendants were bound by the decision and determination

of the FHA that the brick would have to be taken down,’

the wall ties put in according to specifications, and the

brick relaid.

Under the authorities cited above this contract admitted

of no departure from its terms, and defendants were able.

to discharge their: liability only by constructing the build-

ings strictly in accordance with the terms and conditions

of the plans. and specifications. Whether or not one of

the defendants estimated that the cost of removing the

brick, installing the wall ties in accordance with specifica-

tions, and replacing the brick as required by FHA, would

amount to $6000 instead of $11,296.15, was entirely im-

material. Likewise, opinions that the walls would have

bulged even though the .wall ties had been installed or

that the walls were stronger without the ties, were ‘also .

wholly immaterial. Here the contract required strict. con-

formance: with ‘a specification that the brick véneer be

securely vattached to the main, structure with corrosion

resistant ties installed 16 inches apart. When defendants -

departed from this specification they did so at their peril,

und all attempted excuses for non compliance became - im-

A

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material. The trial court properly sae defendants

offers of proof.

Defendants’ deviations from the specification were not

with plaintiff’s consent. On the contrary, the record is

replete with requests and demands’ for compliance with

the specification and replacement of the faulty work.

Although not abstracted, the record includes photographs

showing that the brick vencer in many places bulged about

two inches away from the main structrres. Innumerable

invoices, payrolls and other exhibits are included in the

record and show in detail the amounts expended by plain-

tiff to comply with FHA requirements relative .to the

wall Ries ‘speecified/’The trial judge limited such amount:

to necessary expenses and carefully eliminated items of

profit and overhead expense,

In our opinion the judgment of the Cireuit Court of Lake

County must be, and the same is hereby affirmed.

AFFIRMED.

Dove, J., Concurs