Masonry Magazine August 1964 Page. 20
20
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The Law of Contracts In Relation to Mason Contractors
(continued from page 19)
less and to indemnify General Electric Co., "from all loss, damage and cost on account of personal injuries... resulting from the work."
The subcontractor claimed that under such clause it had not assumed the contractual obligations of the prime contract that imposed absolute liability upon General Electric Co. to the owner. The Appellate Division, however, said that General Electric could recover upon such facts. This case, in all probability, will go to the New York Court of Appeals, and may indicate a further extension of liability under a rather innocuous contract agreement to assume absolute responsibility, which the contractor had in turn assumed, to the owner.
Not only will the courts impose liability on a contractor on the basis of a Hold Harmless Agreement, but they will in some cases impose it through the operation of law.
In holding that the contractor could recover against the subcontractor, although there was no written Hold Harmless Agreement in existence, the court indicated that one contracting to do certain work, warrants that the work will be properly performed and is liable over to the person with whom contracted, for breach of such warranty (Phoenix Bridge Co. v. Creem, 102 A.D. 354, aff'd 185 N.Y. 580, 78 Ν.Ε. 1110 (1906).
This doctrine was followed in another recent Illinois case. (Moroni v. Intrusion-Prepakt, Inc., 24 III. App. 2d 534, 165 Ν.Ε. 2d 346 (1960)). The plaintiff, the contractor's employee, sued the contractor and the owner of the property for injuries recieved as the result of a fall from the contractor's scaffold. A third party complaint was filed against the contractor by the owner on the theory of implied indemnity. Both the plaintiff's and the owner's claims against the contractor were dismissed, the former on the theory that the plaintiff, as an employee, could not recover against his employer, and the latter on the theory that there was no written indemnity between the contractor and the owner. In
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(continued on next page)
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MASONRY
August, 1964