Full opinion text
MEMORANDUM CHRISTIAN, Chief Judge. This suit was commenced by plaintiff Whitfield Construction Company, Inc., (Whitfield) on a claim against defendants Commercial Development Corporation (hereinafter variously CDC, Commercial or Owner)- and Quality Sales Corporation (Quality), for money due and owing on a construction contract and for damages flowing from the alleged breach of the said contract by the defendants. Commercial denied having breached their agreement and in turn counterclaimed against Whitfield for damages stemming allegedly from work left undone, as well as other work done in an unworkmanlike manner. Commercial’s answer stated a multitude of counterclaims. Some involved parties then strangers to the suit. Accordingly, and on motion of CDC, two new defendants on the counterclaims stated were brought in, Fireman’s Insurance Fund (Fireman’s Fund) and American Agencies, Inc., (AA). The former is the bonding company which guaranteed Whitfield’s performance under the contract. The latter is a sub-contractor of plaintiff Whitfield which did some of the work provided for under the prime general contract. Because of issues raised in a further amendment to Commercial’s answer and counterclaims, the joinder of additional parties was found to be necessary. Entering the suit at this point were the architectural firm of Bellante, Clauss, Miller & Nolan (Bellante) which had served Commercial, as well as one John Garfield, an architect and the local agent of Bellante, and finally, an engineer at the time resident in St. Thomas, Roger McCloskey, who performed some of the engineering services entailed in the agreement between Commercial and Bellante. This multitude of parties, as would be expected, spawned a series of cross-claims. As necessary, the substance of them will be detailed in the narrative which follows. Plaintiff in this suit sought injunctive and declaratory relief also. These aspects of the case came on for hearing on October 5, 1970, at which time plaintiff’s principal effort was to prevent the defendants from taking possession of the building until or unless they accepted it as fully completed. As a matter of actual fact, however, at the time of the hearing, defendants were already in possession and were utilizing the building. The up-shot of it all was a negotiated standoff pending final determination on the merits of the entire case. In halting the court proceedings in progress at that stage, the parties agreed that the sum of $60,000 found to be due plaintiff from defendant CDC, was to paid. This was done. An additional sum of $5,000 was also handed over to plaintiff as due and owing, but $27,835.44 was placed in the registry of the court. This sum the clerk deposited in an interest bearing account to await the Court’s final decision. The issues remaining in the case after the above mentioned settlement came on for trial March 18 through 22, 1974. At the conclusion of the taking of testimony, all parties were given time to file post-trial briefs. The matter thereafter having been taken under advisement by the Court, and the Court having now considered the evidence adduced and the contentions of the respective parties, makes its findings of fact and conclusions of law as are set out below. By written instrument dated October 28, 1967, Howard Rosov acquired a leasehold interest from the Government of the Virgin Islands in certain real estate located in the Sub Base, St. Thomas. This interest was to run initially for a period of twenty-five years, beginning on January 1, 1968, and was subject to two five-year options to renew, after which time it would revert to the Government. Rosov subsequently assigned this lease to Commercial, of which he was President, which in turn leased it to Quality Sales for the purpose of carrying on a food storage and sale business. Rosov is also an officer of Quality Sales, which is owned by International Food Sales Service. On September 1, 1968, a contract was entered into between CDC and Bellante; by which the latter was to provide architectural services in the design and construction of the building to be used by Quality in its proposed business. The form of this contract was the standard AIA document between Owner and Architect, setting the ordinary bounds of the Architect’s responsibility and authority. All transactions in behalf of Bellante were accomplished by and through John Garfield, Bellante’s local representative. (Apparently certain aspects of the plans and specifications were submitted to Garfield, already drawn up, by a Dr. Paul Eaton. Although Eaton’s status in this affair was never adequately clarified at trial, it does appear from the testimony that he was an agent of the Owner). On June 7, 1969, Commercial signed a contract with Whitfield whereby Whitfield became the general contractor for the construction of the building. Both Ray Whitfield, President of the construction company, and his brother James, superintendent at the job site, testified at the trial. The documents of this integrated contract include, in addition to the written agreement and the AIA General Conditions, the Owner’s invitation to bid, the drawings, specifications and plans, and three addenda. Whitfield subcontracted the plumbing work to Tropic Plumbing, the electrical work to Rogers Electric and the fabrication and erection of the structural steel frame to American Agencies, Inc. Commercial directly contracted for the construction of the insulated freezer room with Carib Insulation Company of Miami, the millwork in the administrative office area to Amberg and the interior decorating requirements for the office area to Hans Kriek. The original contract price of $575,000 was modified by subsequent agreement to $525,000, removing certain aspects of the construction work from Whitfield and making it either the Owner’s or an independent contractor’s responsibility. This contract stated that unless otherwise altered by Change Order, the date for the completion of the building was to be 290 days after the issuance of a building permit, and that time was of the essence. As originally planned, the building should have been completed by May 20, 1970. Liquidated damages were provided for every day beyond that time that the Owner was deprived of occupancy and use due to delay attributable to the contractor. In addition to the necessary triumvirate of Owner-Architect-Contractor, and the previously mentioned Eaton, there were several other individuals involved in this construction project whose roles are not only ambiguous but whose presence cast the ordinary duties of the others in some confusion. One Justus Villa, a civil engineer, was retained by Commercial sometime in 1969 as the “Owner’s representative.” Although this appears to be a position anticipated and recognized by the AIA as one apart from the Architect (See |f ‘2.2 of AIA Agreement between Owner and Architect), Mr. Villa himself appeared uncommonly unsure as to just what his role was supposed to be. When pressed, however, he repeated the precise language used by Rosov to commission him, words best omitted, but aptly described as blunt and colorful. According to his testimony, he was to “assure the Owner that terms of the contract were being' complied with,” “to cheek and report to the Owner as to any deviations,” and to “consult with both Owner and Architect as to the realism for requests for payment,” all this despite the fact that at no time was he given any written or oral authorization, to supervise. He was not acting under a written contract, and he characterized his understanding with Rosov as a gentleman’s agreement. His understanding of his function differs from that anticipated by the AIA documents, which provides: The Owner shall designate, when necessary, a representative authorized to act on his behalf with respect to the Project. The Owner or his representative shall examine documents submitted by the Architect and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of the Architect’s work. Rosov confirmed the absence of any written contract between himself and Villa, and asserted that the latter was hired to keep him “informed as to the status of construction and as to what was happening and what was going on as an expert because [he] had no knowledge of construction per se.” (Deposition p. 21) Although it is clear that Villa’s was not a supervisory position, he was nonetheless Rosov’s (CDC’s) agent. The relevance of Villa’s precise status, as will be more fully shown infra, has to do with whether certain of his acts or omissions can be imputed to his employer, CDC, and therefore whether certain claims of CDC must fail. Another mysterious cog in this complex wheel is Roger McCloskey. It is clear from both the testimony and correspondence in evidence that he was an engineer working with Garfield, responsible for the design of the floor slabs. The question arises, however, whether he is to be considered an agent of Bellante or as an independent contractor. Whatever the ultimate resolution of these individuals’ relationships with one another and the parties, it is undisputed that as the work progressed it was periodically riddled with disputes, increasing hostility, and lack of cooperation. On February 10, 1970, there was a general work stoppage during which the masonry walls which were partially constructed, were torn down and re-designed. There is disagreement among the parties as to who ordered this stoppage, Whitfield and CDC blaming each other. Beside the major dispute as to who was responsible for the initial malconstruction and additional costs of redesign and construction, there is disagreement among the parties as to the effect of a memorandum agreement, dated April 3, 1970, which supposedly detailed the modifications to be made during the rebuilding. After the wall dispute was settled sufficiently to permit the resumption of work, the job proceeded without further interruption. On August 3-4, 1970, an inspection was made of the premises by Ray Whitfield (contractor), John Garfield (Architect) and Marvin Goodman (for the Owner), after which Garfield sent Whitfield a letter stating that the building was in a “state of substantial completion except for the completion of the electrical system and resolution of the problems involved with the cracking plaster on the freezer wall,” and containing the first punch list of things which remained to be done. On August 4, before this letter was drafted, the ceiling in the freezer area collapsed while three AA employees were working and standing on it. Several of the claims involved in this suit arise from that collapse. Some time before the injunctive hearing of October, 1970, a certificate of occupancy was issued by Public Works, and after the court’s ruling in that matter, CDC and Quality took over formal possession and started to conduct business, which they have continued to do, without interruption, to this day. The major disputes in this case revolve around several distinct stages of the construction process. They are the pile driving operation; the laying and design of the floor slabs; the design and construction of the masonry walls; and the refrigeration unit ceiling. There are, of course, virtually hundreds of other disagreements, the most important of which are discussed under the heading of Miscellaneous. I. PILE DRIVING The foundation of this building, both as designed and as built, is set on timber friction piles which have been driven into the ground. It is the Court’s understanding that this is a common means of construction, and one used often on this island. It is the contention of defendant CDC that Bellante, et al were negligent in their design and supervision of the plans, and even more emphatically, that Whitfield did an inadequate job of driving the piles, rendering the basic foundation of the building fatally and dangerously unsound. More specifically, CDC objects that the piles were made of the wrong material (wood), not of the proper length, not driven deeply enough because of the utilization of the wrong formula, and driven with a “cold hammer.” Naturally, Whitfield claims that all these charges are groundless, and that the piles were driven in a proper manner and are fully capable of sustaining the full design load of 313 psf. Prior to the beginning of excavation, Rosov commissioned the Puerto Rico Testing Services, Inc. to take soil borings, to conduct other tests regarding environmental factors, and to make recommendations as to the best manner of executing the foundation. The results of those tests are in evidence and were the subject of much debate during the trial, especially as to the significance of the recommendations in terms of mandatory compliance. Commercials’ first witness, Justus Villa, disapproved of the design, supervision and execution of the pile driving. He said that the driving criteria set out in the specifications were based on the so-called Wellington Formula, which he asserted has been discredited throughout the industry. Moreover, he said that even assuming the Wellington Formula were adequate for the job, by comparing the specifications and the driving log which had been kept by Whitfield during the pile driving operations, they were not driven to a sufficient depth. He asserted that at one point during his observation of the work, he noticed that piles were being driven with a cold hammer. He explained that the significance of this was that a “Delmag D-12” diesel hammer was used, which required a certain amount of warming up, and the full, requisite power could not be achieved until this had occurred. He further asserted that to his observation the piles had been driven “willy nilly” with no discernable pattern. This testimony was directly explained, or at least countered, by Ray Whitfield, who explained that while they did not use a cold hammer for any of the actual blows, there is a period of time in which they used a cold hammer on each pile. This apparently has the double advantage of getting the hammer hot, and giving the earth a chance to settle around each pile before sending it to its. ultimate depth. This particular practice was corroborated by another witness, Murray Beaman, a civil engineer from Miami who was called by Whitfield. He testified that the man who had done the pile driving in this instance, one George Bunnell, had done the same kind of work for him many times in Florida, that he had always done a good job, and that he clearly knew what he was doing. Beaman also testified as to the advisability of following the recommendations contained in the sub-soil report, admitting that while one purpose of such reports is to make recommendations, they are also always in a standard form and are recommendations only. The clear implication from this testimony, as well as from that of other expert witnesses, is that the recommendations contained in the report are in no way mandatory, and are not incorporated into the plans and specifications drawn up by the Architect. In fact, one of the contract documents made clear that were the contractor to follow the sub-soil report, and his doing so result in some deficiency or failure, he could not avoid liability by claiming to have followed the recommendations of the report. Thus I can find no error in Whitfield’s choice of timber rather than another kind of pile. This conclusion is bolstered by Par. 4:3:1 of the AIA Document A201, General Conditions of the Contract for Construction, which states that the contractor “shall be solely responsible for all construction means, methods, techniques, sequences and procedures . . . ” The last expert to testify on the subject of the piles, called by Bellante, was Michael Johns, an engineer from the District of Columbia whose credentials alone would take up two pages. Mr. Johns stated unequivocally that the piles were properly designed, properly constructed and should last at least twenty-five years. Villa based his opinion that the pile foundation was inadequate on, inter alia, his observation of certain crack patterns at various critical areas of the building. Thus, for example, he said that cracks on top of the pile caps, especially in the marshalling area, proved that the foundation was under more stress than it could properly take. Beaman and Johns, however, were both of the opinion that such cracks were the result of settling, natural shrinkage, heavy use and age, and that they did not signify any defect in the construction of the foundation. In fact, these two witnesses both indicated that if the cracks were unnatural, they were a result of abuse by the tenant, in that pallet storage against the outside walls, extending upwards of fifteen to twenty feet, was pushing against the walls, which were neither designed nor built to take that kind of stress. This Court took a view of the premises, accompanied by counsel for all parties. Although we observed the cracks, we must necessarily rely on the opinion of the experts as to what they signify. The array of expert testimony was impressive, all parties having produced men of unquestioned qualifications in a complex field. Despite the high level of expertise many of these witnesses testified to diametrically opposed theories, and it is the difficult task of this Court to have to choose among them. To that end, we have weighed Villa’s admitted ability and knowledge of local conditions against Beaman’s and, especially, Johns’ outstanding achievement and reputation in the civil engineering field, as well as their familiarity with subjects such as pile foundations with which Villa has had only passing and incidental contact. Coupled with the view taken by the Court and the undeniable fact that the building is still standing, not to mention withstanding the additional pressures caused by increased traffic from a new four-lane highway, we have come to the conclusion that the testimony of Michael Johns is the most believable. Although not conclusive, it is also noteworthy that it is buttressed by that of Beaman and Whitfield, whereas Villa’s stands practically alone, with Madison supporting him only slightly. In assessing the gravity of the piling problem, it is instructive to note that CDC did not complain to Whitfield about the foundation until well after it had become clear that the parties would eventually find themselves in court. Neither the Architect nor Villa at any time told Rosov that it was being done incorrectly. Moreover, if the danger is real, Villa’s attitude towards his responsibility seems to have been singularly cavalier. At trial he testified that as his job was only to observe the construction, not to design, he never voiced his disagreement with the pile driving criteria (for which he blames McCloskey, who apparently provided the formula). He stated that “just because the design was a little wrong, it was not necessary to tell Rosov . . . it’s just that by the law of averages, if you’re lucky it will be okay.” Common sense would dictate that if the foundation were truly as precarious as was urged at trial, Villa as the Owner’s representative would have made his opinion known at that time, and not have waited until litigation was imminent or indeed a fact. Moreover, Villa had, prior to this job, only an academic familiarity with pile foundations, as he had never before been involved in a job where they were used. Whitfield, on the other hand, was experienced in the area, as he had done the construction work on several local buildings which were built on pile foundations. I therefore find that both as to design and construction, the pile foundation is adequate. Since this is so, obviously the entire pile driving operation was properly supervised as well II. FLOOR SLABS The calculations and specifications for the floor slab design were done by McCloskey. These plans called for poured concrete floor slabs with a certain amount of reinforcing steel in them. Before the first pour, Whitfield prepared the forms and reinforcing steel bars in conformity with the plans. Villa, however, observed that there had been an error in design and concluded that the steel would be inadequate for the job. When it was called to his attention, McCloskey confessed error and re-worked the relevant calculations to arrive at the proper steel quotient. To guard against the possibility of further error, both McCloskey and Villa personally supervised the actual pouring of the slabs, which were then performed by Whitfield. Nonetheless, Villa asserted at trial that even after the proper strength of the steel was rectified, Whitfield still positioned the steel incorrectly within the slabs. The tests of the Pittsburgh Testing Lab seem to bear out at least the conclusion that the reinforcement of the floor slabs still do not meet ACI building code requirements for reinforced concrete. The testing organization conducted load bearing experiments on the floor slabs, which are set out and described in Exhibits 37 through 39. The conclusions found at page 5 of Exhibit 37, admitted into evidence, are that “Based on the recovery of Point 4, the floor failed to pass the ACI static load test and cannot be loaded in service with the live load of 313 PSF for which it was designed. Points 2 and 3 are very near to failure.” Despite this conclusion, we fail to see how the blame for this can be laid at Whitfield’s door. As noted above, MeCloskey is the one who readjusted the figures and formulae for reinforcement, directions which Whitfield followed to the letter. Moreover, Villa was present with MeCloskey and Whitfield when the first, as well as subsequent pours were executed. In fact, there was even testimony that Villa borrowed someone’s tape measure to make certain that the steel was in the correct position, the proper distance respectively from the top and bottom of the slab. Villa’s participation in this procedure appears from all accounts to have been more than that of a mere observer, and if the positioning was wrong, at the very least he acquiesced. Nor, again, did he make an objection to those present at the site, or later to Rosov. It is an inescapable conclusion that the steel bars in the floor slabs were properly executed and, if they were not, the silence of Villa, as plaintiff’s agent, as to any defect precludes CDC from claiming error. From the timer'that Villa realized that an error had been made and so apprised MeCloskey, the latter conceded his responsibility. By letter of April 29, 1970, he sent Whitfield a check for $500 as a downpayment on the $5,000 price adjustment necessitated by the new design. Ray Whitfield rejected this proffer on the ground that he had no contract with MeCloskey and that as far as he was concerned, he should be paid in full by CDC. Rosov testified that at no time during resolution of this problem was it expected of him to pay Whitfield for the additional work, as it was clear that the mistake lay with the engineer. There is dispute as to whether the Architect or CDC should pay for this extra steel. In a subsequent Memorandum Agreement which resolved yet another dispute (Memorandum Agreement of April 3, 1970), CDC promised to guarantee, and did in fact pay, Whitfield the full $5,000 for the additional steel. Although it is clear that CDC has no recourse against Whitfield for this money, the dispute is still open as to whether it is entitled to recoup this loss from MeCloskey and/or his principal, Bellante. III. MASONRY WALLS On February 10, 1970, work was stopped on all phases of the Quality Sales building. There is hot dispute as to which party was responsible for calling a halt to the work, but it is unquestioned that all operations ceased. At the time of the stoppage, Whitfield had been in the process of constructing the exteri- or masonry walls. Whitfield testified that before starting on the walls he had found what he considered to be a defect in the design. In an effort to cover for Garfield (Viz a viz Rosov), he told him on the job site that the walls did not meet the support requirements of the Southern Building Code and that tie beams would have to be added. When Rosov refused to pay for this change, Whitfield claims that he and Garfield reached a compromise and that Garfield permitted him, by means of an oral field change, to use thread-line as a means of welding the blocks together. Thread-line was a new form of adhesive glue put out by Dow Chemical, which glues blocks together rather than using a mortar system. The original plans had called for dur-o-wall, a “wire gadget” shaped like a narrow ladder, the function of which is to provide concrete block reinforcement. Although Villa had no memory of it, Garfield recalled being present at an experiment at the request of Whitfield to see how thread-line worked. Whitfield’s position is that after that demonstration Garfield gave him permission, per field change, to use that means of construction. After Whitfield had gotten a good portion of the wall erected, Villa noticed that they were not in conformity with the plans and specifications and notified Rosov of his observation. Rosov halted the work and hired a Miami consulting firm to come down and examine the walls and plans. This Miami firm, H. J. Ross, Associates, re-designed the wall structure after extensive study The dispute was finally settled and work resumed pursuant to a Memorandum Agreement dated April 3, 1970, whereby the walls were to be knocked down and rebuilt. The new design required tie beams, the necessity of which Whitfield had previously advised Garfield. This Agreement also called for an extension of sixty-five days in the completion date, bringing it up to August 7, 1970, and an increase in the contract price of $17,000. Despite all the changes wrought by the H. J. Ross design, Villa finds fault with the work as ultimately executed in that he says Whitfield still omitted the dur-o-wall. He contends that dur-owall was called for in the original plans, and to his knowledge was not eliminated by the April agreement. We agree with Villa that the modification agreement maintained the requirement of dur-owall, but only for the refrigeration and freezer portions of the wall. Although the precise trade name was not spelled out in the Agreement, it provides that “all walls associated with freezer and cooler spaces shall have standard galvanized ladder type joint reinforcement in-installed every other course.” We recall that Villa described dur-o-wall as precisely that, “a wire gadget shaped like a narrow ladder,” and therefore infer that that is what was meant in the above specification. The inference seems compelled that if the “Memorandum of Agreement” chose to mention dur-o-wall in connection with “[a] 11 walls associated with Freezer and Cooler Spaces” only, the intention was to eliminate it, presumably by substitution, from the other walls. We cannot agree, however, that Whitfield failed to construct those walls in that manner. Ray Whitfield himself testified that as far as he knows they complied with that requirement. Commercial has produced no evidence, other than Villa’s testimony, to prove that Whitfield’s knowledge is faulty. Since Whitfield recognized that dur-owall was called for, there is no reason to assume, as Villa would have us do, that in the face of that Whitfield, on his second chance to build the walls, still omitted it. We are unable to find that Whitfield omitted the dur-o-wall in the walls of the freezer and cooler spaces as they presently stand, and reject Commercial’s argument that he did so. This-, being the only serious objection voiced by CDC regarding the rebuilt walls, we find that as rebuilt all walls conform to the April 3, 1970 writing. IV. REFRIGERATION CEILING On August 3-4, 1970, there was an inspection of the premises. The question is raised, at the outset, as to whether this was to have been a “final inspection” -in terms of the contract, whereby the building, subject to a punch list, would be certified as being in a state of substantial completion. In any event, some time on Tuesday, August 4, the suspended ceiling in the refrigeration section collapsed destroying most of the electrical work which was thus far installed. This phase of the work had been done by Carib Insulation, a now bankrupt Florida firm, which had a contract directly with Commercial. At the time of the accident, three employees of A A were working on the ceiling. CDC claims that the collapse was the direct result of negligence on the part of these AA employees, and thus the responsibility of their general contractor, Whitfield. According to one of the AA men, Ramon Luis Hernandez, the men were standing between the deck and the frame, on top of the frame, welding purlins. At the moment of the cave in the ceiling was bearing the combined weight of Hernandez, his two co-workers, a welding cable and a forty pound purlin. Hernandez stated that the three men were spaced about ten feet apart (the frame itself was between 50 and 60 feet long), and were being, as they had been instructed, very careful, having been told by both of the Whitfields that the ceiling was weak. Further, the area where the ceiling started to give way was, by his testimony, about forty feet away from where the men were standing. This witness described the manner in which they hoisted the purlins up with a pulley, carried it to where it had to be welded, and then welded it. There is some question of whether this ceiling, on which they were working, was meant to be weight bearing. It does appear, however, that in order to do certain electrical work there was no means of reaching the necessary height other than by standing on this structure. Villa admitted that even though it was not meant to be used as a floor, it should have been able to stand the weight of the installers and, by inference, any other workmen who needed to get up there. It is abundantly clear that at various points in time, many other persons other than these AA men had been up on the ceiling, including Villa himself. The electrical subcontractors from Rogers Electric, among others, had made use of the structure during part of their installation. The only evidence tending to directly connect the collapse to any negligence on the part of Hernandez or his colleagues, was testimony by Villa. He stated emphatically that he had seen these men “running full-tilt like animals” and that he had told Jim Whitfield Monday morning that they were going to cause severe damage to the building. He said nothing to the men, however, as he was of the opinion that to do so would have been “interfering,” and that it was Whitfield’s job to tell them to be careful, not his. Again, Villa’s attitude seems to have been oddly unconcerned, and in this case it seems that his sense of tact, if that be the basis of his restraint, was not in the best interest of his employer. Villa’s testimony only, attributes negligence to the AA’s employees. None of the other persons continuously present at the warehouse noticed any kind of reckless behavior on their part. Moreover, it is impossible to attribute sole control of the area to them, as other witnesses had at different times seen many other persons working and walking on the same ceiling. It is more logical to place the blame on faulty construction of the ceiling, for which the bankrupt (and non-party) Carib Insulation should be held responsible. Or, one could conclude that it was a cumulative weakness due to use and stress beyond that for which it was structurally designed. I find that the collapse was not caused by the presence or negligence of the AA employees, and frankly believe that all concerned should consider themselves fortunate that there was no personal injury or loss of life. Tangentially related to the ceiling collapse is a disagreement as to the meaning of a letter written by Garfield to Whitfield August 5, 1970, the day after the incident. The portion of that letter at issue reads: “Please note that it is at the point of substantial completion except for the completion of the electrical system and resolution of the problems involved with the cracking plaster on the freezer wall.” Also contained in that letter is a preliminary punch list, setting out the items of work remaining to be completed. The contractor is attempting to hold the Architect and Owner to the characterization that the building was then in a state of substantial completion which, according to the terms of the General Conditions, is that point of the work when the construction is sufficiently complete so the Owner may occupy the structure, or designated portions thereof, for the use for which it was intended. In view of the fact that the refrigeration unit ceiling had fallen only twenty-four hours before this letter was written, destroying not only that portion of the work but a great deal of the electrical wiring and other aspects as well, it would be fatuous indeed to believe that Garfield meant to use the term in its technical sense as of the date of his letter. Whether for the purpose of computing the completion date or any other, it clearly cannot be said that at the time of this letter the building was substantially completed so that it could be used for the purpose for which it was built. More than likely what Garfield must have intended to say — and this would comport with the evidence as we view it —was that as of his August 3-4 inspection, prior to the falling of the ceiling, the work was substantially completed. To find otherwise would be to attribute to Garfield total unawareness on August 5, that the ceiling had fallen on the previous day, for us an incomprehensible proposition. V. MISCELLANEOUS In an attempt to show an itemized list of damages sustained by CDC through the fault of the other parties, Villa put together a series of “schedules” allegedly itemizing the work either not completed or executed in a faulty manner. This list was admitted in evidence, but it cannot be used as proof of actual losses sustained. It was prepared, according to Villa, sometime in the spring of 1972 for the purpose of negotiating a settlement, and Villa himself stated that, in terms of how his figures reflected actual damages, “they would do for openers.” The size of Villa’s list raises another point relating to the alleged gravity of the damages CDC claims. The purpose of a punch list is to show what items of work remain undone or to be corrected. It is only logical, and indeed necessarily so, that the punch list would decrease in volume until the point of acceptance and final completion is reached. In the instant case, however, as Ray Whitfield morosely pointed out in testimony, the punch lists proliferated, seemingly in geometric proportion, as time progressed. Moreover, items appeared on later lists which not only had never appeared before, but about which objections had not been voiced during the course of the work. The prime example of this is all the fuss about the piles, but there are scores of others. Whitfield also pointed out that much of the work could not be completed because of the failure of the owner to provide certain items which it or its tenant by contract was to provide for Whitfield and his sub-contractors. Parts of the electrical work were delayed for this reason, and it is interesting to note that a sizeable portion of Villa’s list and of the later punch lists seek to penalize Whitfield wrongfully for this delay. Although this will be taken up more fully in connection with damages, it is fitting that a finding of- fact be made acknowledging the fact that these ever increasing complaints tend to show a lack of cooperation, and perhaps even good faith, on the part of the Owner, CDC. There are virtually hundreds of small items in dispute between Whitfield and Commerieal. Most of these, however, are too meaningless to merit an individual finding and will be considered only, if at all, in the context of assessing damages. CONCLUSIONS OF LAW At the end of the plaintiff’s case, a motion was made by defendant Quality to dismiss Whitfield’s action against it. As pointed out in Quality’s post-trial brief, the only relief requested against it in any of the complaints on file relate to the injunction action, wherein it was prayed that Quality and Commercial be enjoined from taking possession of the building. That request was resolved by the Court’s decision in 1970 granting the defendants occupancy. Nonetheless, defendant Quality was kept in the action through the completion of the trial and to this date for the reason that had CDC proved its claims for damages, Quality still would have been a necessary party. Thus, although the initial injunctive prayer against Quality was mooted by this Court’s order in October 1970, it has not until now been proper to rule on Quality’s motion to be dismissed as a defendant in this suit. Quality’s memorandum asserts that “the complaint is silent as to any charge against Quality for any of its actions which either directly or indirectly caused any damage to Whitfield.” (p. 2) This is not entirely true, for several of the punch list items which held up final acceptance were the delivery of equipment which was the responsibility of Quality. In the context of this suit, however, that failure must be attributed to Commercial which had the direct responsibility to Whitfield. Nor has Commercial cross-claimed against Quality. Therefore, the motion of Quality to have the action dismissed as to it will be granted. Fireman’s Fund is a party because it was Whitfield’s surety on the construction bond. This fact was never denied in the pleadings. The insurance company has argued in its post-trial brief (p. 23) that in its second amended answer, Commercial chose not to include a sixth separate and distinct counterclaim against Fireman’s Fund, which had been included in and responded to in the previous pleadings. On the basis of this, and the fact that the surety bond itself was never offered in evidence, the surety claims that it is no longer a party. We disagree. Despite its above assertions, Fireman’s Fund had an attorney at counsel table who participated throughout the trial, and submitted a voluminous, post-trial brief, only the last paragraphs of which urged this argument. More important, however, is the fact that at no time during the course of the trial did this particular party move for dismissal of the action against it on this ground. In fact, at the conclusion of Commercial’s presentation of evidence, the surety moved to dismiss only on the basis that it was not the contractor’s responsibility to follow the recommendations of the sub-soil report, and therefore the surety, as the contractor, could not be liable to the owner for its allegedly improper execution. There is sound authority for the proposition that parties may waive any defects in the pleadings by not making the timely and necessary objections. We reject the argument advanced at this late date based on the pleadings and lack of proof. There was oral testimony of the surety relationship, and there was behavior and representation consistent with that relationship. Moreover, Fireman’s Fund fully litigated the issues it belatedly claims were dropped by Commercial. Therefore, we conclude and hold that Fireman’s Fund’s liability on the construction bond is established, to the same extent as that of its principal Whitfield Construction Company, for whatever sums Whitfield is found to owe Commercial. This liability is, of course, limited by the rule that it cannot exceed the amount of the bond. 17 Am. Jur.2d Contractor’s Bonds § 6 (p. 195). Because we have found as a matter of fact that there was no defect in the design or execution of the pile foundation, that aspect of the case poses no legal questions. The same is not true for the floor slabs and masonry walls. As was noted earlier, from the time Villa observed the error in the design of the floor slab, McCloskey admitted the fault lay with him and even tendered Whitfield a check for $500 as a downpayment on the increased cost of materials. Pursuant to the terms of the April 3, 1970, Agreement, CDC guaranteed and, in fact, paid the full amount to Whitfield, although apart from that agreement it was not obligated to do so. CDC now has a valid claim for that sum against either McCloskey or Bellante. The proper party from whom it can collect turns on the question of whether McCloskey was acting as an agent of Bellante or an independent contractor. If he was the former, Bellante is clearly liable to CDC for $5,000 for the additional steel and reinforced concrete in the floor slabs. If, on the other hand, McCloskey is found to have been an independent contractor, Bellante is not liable for his mistake and CDC may collect directly from McCloskey. The general rule of liability is that a principal is liable for the negligent acts of his agent, but not for those of an independent contractor. Dumas v. Lloyd, 6 Ill.App.3d 1026, 286 N.E.2d 566 (1972). Garfield stated at trial that since Bellante had hired McCloskey to do the engineering aspects of the Quality building, the architectural firm is responsible for his omissions. His voluntary admission, however, does not make it so, as the question is one of law. The facts in Owings v. Rose, 262 Or. 247, 497 P.2d 1183 (1972) are almost on 'all fours with those of the case at bar. In that case the plaintiff architect sued the defendant engineer in an indemnity action for the money which it was obligated to pay in an out-of-court settlement with the owner of a building for which plaintiff had acted as project architect. The architect had hired defendant to do the engineering services for the design of the floor slabs, which had cracked severely. In Owings the court held, without discussion, that the defendant was not an independent contractor, and was liable to the architect for the money it had paid to the owner for the losses sustained arising from the engineer’s faulty design. In a footnote, however, the court distinguished that case from an earlier one, Johnson v. Salem Title Company, 246 Or. 409, 425 P.2d 519 (1967). In Johnson, the court had held that an architect had a non-delegable duty to design a building in conformity with the safety requirements of the city building code. As stated in footnote 1 of Owings, 497 P.2d at 1187: In that case [Johnson], we assumed but did not hold, that the consulting engineer who had actually designed the defective wall was an independent contractor and that the architect, his employer, would not normally be liable for his torts. Nevertheless, the architect was held liable in that case because his duty to design safely was held to be non-delegable. The decision turned on the safety requirements of a building code, while here there is no contention that the floor was structurally unsafe or in violation of any applicable code requirements. (Emphasis supplied.) Villa contended, and McCloskey conceded, that the calculations for the reinforcing steel and concrete in the floor slabs were so deficient as to completely violate the requirements of the Southern Building Code, a document much referred to during the course of the trial. The references, however, were largely due to the fact that many of the witnesses were accustomed to using that Code, and also that it was established by the specifications as the standard to be followed. Although there was some testimony to the effect that the Southern Building Code was incorporated into the Virgin Islands Code by reference, a thorough search of Title 29 and the accompanying Rules and Regulations proves this not to be the case. Other Codes specifically mentioned at trial, e. g., the ACI, are incorporated into the Virgin Islands Code by name, and perhaps the confusion stems from that. In any event, the Southern Building Code has not been so incorporated, and the failure of McCloskey’s design to conform to its provisions cannot be transformed into a Johnson-type nondelegable statutory duty which would render Bellante liable for McCloskey’s error. The Restatement of Agency 2d, § 220, provides several criteria for determining who is an agent but not a servant, that is, an independent contractor. In terms of almost all of these factors, McCloskey falls within the category of independent contractor, and thus solely responsible for his own negligent conduct. There can be no doubt that his error in calculating the proper amount of reinforcing steel and concrete falls within that kind of behavior. There are ten such factual considerations listed; discussion of only a few will demonstrate the independent nature of Mc-Closkey’s employment. (a) Extent of control which by the agreement the master may exercise over the details of the work. This is often described as the most crucial of the considerations. 41 Am.Jur.2d Independent Contractors § 6. An independent contractor agrees to accomplish certain results, but such contractor is not controlled in the details, manner, or particular method of performing the task, whereas an agent is subject to the control of the principal with respect to the details of the work. Id., § 7. The agreement between McCloskey and Garfield, scantily evidenced by an exchange of correspondence (Exhs D-l and D-2), shows that McCloskey agreed to do the design work for the floor slabs and slab supports in consideration of 3% per cent of the structural cost. This fits nicely with criterion (g) in the Restatement, the method of payment. Comment (j) provides that “If the time of employment is short, the worker is less apt to subject himself to control as to details and the job is more likely to be considered his job than the job of the one employing him. This is especially true if payment is to be made by the job and not by the hour.” See also 41 Am.Jur.2d Independent Contractors § 13. The method of payment in this case is strongly indicative of an independent con tractor ship. Also strongly indicative is (d), the skill required in the particular occupation. Civil engineers such as McCloskey are a highly specialized group. Comment (i) states that, together with the effect of custom of the community, “the skill which is required in the occupation is often of almost conclusive weight. Unskilled labor is usually performed by those customarily regarded as servants .” Conversely, one hired for a highly specialized skill, working under his own control on a well-defined aspect of the overall job, is properly an independent contractor. “The fact that work to be done is such as requires special skill for its proper performance has some tendency to show that the relation between the employer and the person employed is not that of master and servant.” McCloskey’s work, as a consultant, may have been incorporated into Garfield’s drawings and gone out under the Bellante name. Nonetheless, his was a minute proportion of the project which required a particular expertise and which, among the knowledgeable parties, was immediately recognized as his contribution to the work. We think Mc-Closkey, under the circumstances, clearly fits the description of an independent contractor. It is to him, therefore, not Bellante, that Commercial must look for repayment of the $5,000 which the correction of his mistake cost. Commercial is entitled to this sum from Mc-Closkey. The work stoppage of February 1970 was called by Rosov because Villa informed him that the construction of the walls was not proceeding in accordance with the plans and specifications. The original specifications, as noted above, had called for the use of dur-o-wall, rather than thread-line, used by Whitfield as a strengthening device. Although the H. J. Ross revision also called for the use of dur-o-wall in the walls of the refrigeration and freezing units, it added the essential tie beams, which Whitfield says he from the start told Garfield and Rosov were missing. Despite the ultimate vindication of Whitfield’s suggestion by Ross’ inclusion of the beams, it is clear that the cessation of work was precipitated by Villa’s observation of Whitfield’s departure from the particular requirements of the specifications concerning dur-o-wall. In determining who is liable for the costs flowing from the two month shutdown, it is necessary to determine first whether Whitfield was justified in substituting one means of wall reinforcement for another. This calls for an examination of both the substance of his “authorization” and the contract provisions. Whitfield testified that because Rosov refused to pay for the addition of the tie beams, he and Garfield reached a compromise whereby the latter approved the use of thread-line because of its demonstrated superior strength. Whitfield further asserted that this approval was forthcoming after both an experiment and a seminar on the subject which he, Garfield and Villa attended. He testified that after persuading Garfield of the suitability of the new product, Garfield agreed to its use by means of a verbal field change. It is the validity of that consent with which we are concerned. Whitfield argues that the oral nature of the field change was proper because it did not affect the contract price or time of completion. The contract between Whitfield and CDC, however, included AIA Document A201, General Conditions of the Contract for Construction. That document contains the following language: 12.3.1: The Architect shall have authority to order minor changes in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes may be effected by Field Order or by other written order. Such changes shall be binding on the Owner and Contractor. 12.4.1: The Architect may issue written Field Orders which interpret the Contract Documents in accordance with Subparagraph 1.2.5 or which order minor changes in the Work in accordance with Paragraph 21.3 without change in Contract Sum or Contract Time. The Contractor shall carry out such Field Orders promptly. (Emphasis supplied.) As a general rule, the provision in a private building or construction contract that alterations or extras must be ordered in writing is valid and binding upon the parties, and therefore, so long as such a provision remains in effect no recovery can be had for alterations or extras done without a written order in compliance therewith. See generally Anno., 2 A.L.R.3d 620 (1965). The instant case differs significantly from the subject matter of that annotation, however, in that there the sole concern was with whether or not the contractor could recover for work done which differed from the plans and specifications but which was not approved by a written change order. Here, not only are we not concerned with recovery of the cost of work done, but we have a clear and explicit contract provision which provides for written field orders, even when there is no change in contract price or time. [contractors have no right to depart from working plans made a part of the contract. If they do so, it is at their peril and they become guarantors as to the strength and safety of the structures. The parties were clearly entitled to contract to have the buildings erected in accordance with certain plans and specifications. An express contract admits of no departure from its terms, and the [contractors] could discharge themselves from liability only by constructing the buildings in accordance with the plans and specifications, unless a deviation was mutually agreed upon. Robert G. Regan Co. v. Fiocchi, 44 Ill.App.2d 336, 194 N.E.2d 665, 668 (1963). In cases where either the action was by the contractor for the balance of the contract price, or the owner was suing for damages, the general rule is that a deviation from a specific requirement of the plans does not invalidate the whole contract, but only that the contractor may get his money minus the cost of repairing the deviation. See, e. g., Shimek v. Vogel, 105 N.W.2d 677 (N.D.1960), in which the contract called for the contractor to put one inch of gravel on top of the roof, whereas he only put on *4 inch. Even though expert testimony showed conclusively that *4 inch was sufficient and reasonable for the intended purpose, the court held that the owner was entitled to exactly what was called for in the plans, not merely what was reasonable, and ordered the contractor to pay the owner for the cost of % inches more gravel plus the cost of labor for putting it on. Thus, Whitfield’s claim that thread-line would be more effective under the circumstances, no matter how true, must fail, because CDC had the right to insist on the precise execution of the terms of the contract. See also Drummond v. Hughes, 91 N.J.L. 563, 104 A. 137 (1918); Clark v. Pope, 70 Ill. 128 (1873); 6 A.L.R.3d 1394, 1415 (Section 5). Likewise doomed to failure is Whitfield’s claim that because Garfield consented, with or without a written field order, he is relieved of any liability flowing from action taken on his own initiative. Although, for many purposes of this project, Garfield may be considered to be an agent of CDC, his agency must be interpreted within the confines of the various agreements among the parties. It has generally been recognized that in the absence of express authority, an architect, as such, has no power to waive or modify a stipulation requiring a written order for alterations or extras. 2 A.L.R.3d at 686; McNulty v. Keyser Office Building Co., 112 Md. 638, 76 A. 1113 (1910). A somewhat similar factual pattern was present in the case of Kirk Reid Company v. Fine, 205 Va. 778, 139 S.E.2d 829 (1965), except there the architect was empowered to orally authorize minor changes. In holding the contractor liable for not strictly conforming to the plans, despite the alleged approval of the architect, the court said: [T]he contract between the complainant and the defendant provided that Oliver and Smith, the architects, and Hart, the engineer, were to “have general supervision of the work.” Under such circumstances, the architect is not, by virtue of his employment, the general agent of the owner for all purposes in the work he is engaged to supervise. His authority is a limited one — defined by the terms of his contract of employment or by the terms of the contract between the owner and the contractor. He has no authority to make alterations in the plans and specifications nor to bind the owner with respect thereto except as provided in the contractual documents. 139 S.E.2d at 832. Whatever may have been said or done by the architects and engineer to lead the complainant to believe that they had approved the changes, their actions were in direct conflict with the provisions of the contract which required that written approval should be had before major changes could be made. These contractual requirements were as well known to the complainant, and equally as binding upon it, as they were to the defendant and the architect and engineer. To the extent that the actions of the architects and engineer were in conflict with the provisions of the contract, such actions were in excess of the authority of these limited agents and, unless ratified by the defendant [owner], not binding upon him. Id., at 834. Thus whether or not Garfield approved Whitfield’s substitution of thread-line for the dur-o-wall, and the evidence does not clearly lean in that direction, he did so without proper authority and could not bind CDC to accept its use. Even though the change, per se, in no way altered either the contract price or time for completion, it cannot be properly characterized, in our view, as minor. Commercial in specifically requiring dur-o-wall, spaced in a particular manner, was seeking to guarantee structural strength. The specifications were worded to eliminate alternative methods. A change as to so vital an aspect of the project — the strength of the walls, some of them load bearing, must be considered nothing short of major. Thus, Villa and Rosov were within their rights when they called a halt to the work. As was stated in Kirk Reid Co., supra, It was conclusively shown that defendant [owner] did not, at any time, in writing or otherwise, authorize or approve the changes in the work. It was just as conclusively shown that neither the architects nor the engineer even issued a written order stating that the defendant had authorized the changes. Nor was there any indication that the powers of these limited agents were, in any special instances, broadened so as to constitute them general agents of the defendant. 139 S.E.2d at 833. We thus conclude that Whitfield’s use of thread-line, while perhaps prudent from a technical viewpoint, was improper in the absence of a written field change from Garfield. Consequently, we believe Whitfield is liable to Commercial for the cost of knocking down the original walls and rebuilding them. We think the case before us differs from those which hold that, even absent a written authorization for alterations or extras as required by the contract, a contractor may be compensated for extra work “where the necessity for the extra work results from acts, errors, and mistakes of architect or engineer or the owner, under whose supervision the work is to be done.” Connersville Country Club v. F. N. Bunzendahl, Inc., 222 N.E.2d 417 (Ind.App.1966). See also Bryan and Sons Corp. v. Klefstad, 237 So.2d 236 (Fla.App.1970); Erskine v. Johnson, 23 Neb. 261, 36 N.W. 510 (1888); 17A C.J.S. Contracts § 371(3). Here, while it is true that the new design incorporated the tie beams, which were definitely an omission chargeable to the architect, the initial reason for the shutdown, valid from the start, was Whitfield’s improper substitution of thread-line. However, just because Whitfield is liable, and must deduct from its recovery against CDC the cost of razing and rebuilding the walls, does not mean that it must be responsible for all the costly damages flowing from the nine week shutdown. Quite the contrary is true. Although Rosov from the beginning, was justified in demanding that the walls be done pursuant to the plans, he seemingly took advantage of his position by hiring at least one costly consultant to re-examine that whole phase of the construction. For this substantial item of damage, he cannot recover from Whitfield. Villa advised him of the specific objection, which could have been cured in a matter of a few weeks, if that long. Rosov gratuitously sought further advise which, in fact, confirmed Whitfield’s alleged original suggestion that tie beams be added, a suggestion which Rosov supposedly rejected at the outset as being too costly. Whitfield cannot now be made to pay for the “penny wisdom, pound foolishness” of his contraetee. Moreover, in determining the setoff on Whitfield’s recovery for that amount which properly is owed to CDC, the setoff is to be reduced by that part of the overall cost which is attributable to the inclusion of the tie beams. They are an addition which Whitfield foresaw and of which he notified Rosov in good time. CDC cannot benefit from its own prior frugality. According to Villa’s own assessment of damages and costs, this particular item cost $8,000. (Exh 36, Schedule II, item i). We believe that Commercial is entitled to recover the cost of the H. J. Ross fee, plus that portion of the reconstruction which involved the addition of tie beams, from Bellante. As observed directly by Whitfield, and inferentially from the Ross design, the omission of tie beams was an error which went to the basic soundness of the walls, and is directly traceable to the original plans and specifications. In fact, prior to the Ross revision, Garfield himself drew new designs which incorporated the tie beams. See Garfield letters to Whitfield of February 12, 1970 (Exh