April 16, 2018

Construction documents prepared by Architects and Engineers most frequently use and refer to the term “workmanlike manner”.  This term, an industry standard, refers to the desired and acceptable standard of quality of work and materials on a construction project.

Where claims have originated because of the application and interpretation of this term, the courts have considered and provided their determination with a definition:  {10} Any contract to perform work imposes on the contractor the duty to perform the work in a workmanlike manner. Lin v. Gatehouse Constr. Co. (1992), 84 Ohio App.3d 96 101.

"Workmanlike manner" has been defined as the way work is customarily done by other contractors in the community." Jones v. Davenport (Jan. 26, 2001), 2nd Dist. No. 18162, at 8, citing Salewsky v. Williams (Sept. 17, 1990), 5th Dist. No. CA-8131, at 4.

Where a contractor fails to perform in a workmanlike manner, the proper measure of damages is the cost to repair the damage to the condition contemplated by the parties at the time of the contract. McCray v. Clinton County Home Improvement (1998), 125 Ohio App.3d 521, 523-524. ***   McKinley v. Brandt Constr., Inc., 2006-Ohio-3290.

The United States Supreme Court considered another important aspect of this requirement of workmanship, involving the Architect’s approval for payment: “A contract which provides for the work on a building to be performed in the best manner and the materials of the best quality, subject to the acceptance or rejection of an architect, all to be done in strict accordance with the plans and specifications, does not make the acceptance by the architect final and conclusive, and will not bind the owner, or relieve the contractor from the agreement to perform according to plans and specifications. Glacius v. Black, 50 N. Y. 145, 10 Am. Rep. 449; Fontano v. Robbins, 22 App. D. C. 253. There is also in the contract the provision already mentioned in the statement of facts in regard to payments as the work progressed, which showed that a certificate was to be obtained from and signed by the architect in charge before the contractor was entitled to payment, but it was provided that the certificate should 'in no way lessen the total and final responsibility of the contractor; neither shall it exempt the contractor from liability to replace work, if it be afterwards discovered to have been done ill, or not according to the drawings and specifications, either in execution or materials.' There is the further positive agreement of the contractor to execute and complete all the work as set forth in the specifications in the best and most workmanlike manner, and also that final payment is to be made only when the houses are completed in accordance with the agreement and the plans and specifications prepared therefor.

The whole contract shows, in our opinion, that the certificate that the houses had been completed according to the contract and its plans and specifications was not to be conclusive of the question, and the plaintiff was not thereby precluded from showing that in fact the contractor had not complied with his contract, and the plaintiff had thereby sustained damage.

The cases cited in the opinion of the court below (Fontano v. Robbins, supra; Bond v. Newark, 19 N. J. Eq. 376; Memphis, C. & L. R. Co. v. Wilcox, 48 Pa. 161; Adlard v. Muldoon, 45 Ill. 193) are in substance to this effect. To make such a certificate conclusive requires plain language in the contract. It is not to be implied. ***Central Trust Co. v. Louisville, St. L. & T. R. Co. 70 Fed. 282. 284. The cases of Sweeney v. United States, 109 U.S. 618 , -were all cases in which the contract itself provided that the certificate should be final and conclusive between the parties. MERCANTILE TRUST CO. v. HENSEY, 205 U.S. 298 (1907).

“The pay is good and I can walk to work.”
John F. Kennedy on becoming the 35th President
of the United States.

Author/Editor:  J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Architectural Designer, Planner and Senior Appraiser (ASA).  He is admitted to practice law before the Bar of Ohio, the U.S. District Courts of Ohio and Illinois (Central Dist.), the U.S. Court of Appeals, and the U.S. Supreme Court. He is a former Member of the Ohio Board of Building Standards with professional experience in Business, Construction, Real Property, Mechanics’ Liens, Litigation, Arbitration, Mediation, and Construction-Legal Claims, Project Management and Litigation Expert Witness Support.  His office is in Cleveland, Ohio.