4. CHAPTER THE COOLING SYSTEM The cooling of all the cold rooms and built-in refrigerators in the house was entrusted to a single, enormous, ancient compressor located on a big concrete pedestal in the anteroom in front of the kitchen. As it has been mentioned already - but this is an important point - this compressor provided cooling to all these installations, and they were not few: in the basement, the cold room in the kitchen, the large beer cellar, and the counter in the lounge; in the restaurant the two counters, and a small built-in refrigerator in the back room behind the counters. At the end of September 1987, even before the sales contract had become effective - but we had de facto taken over the business -the first breakdown of the compressor had taken place. The first repair bill had come, salted and juicy: More than Fr. 3.000,00 to make a broken down machinery somewhat less kaputt. The specialist had given me a stern warning and I had no illusions: Something had to go, and fast. At the same time we were well aware of the fact that the whole installation needed a thorough scrutiny, something like a general energy concept, to use a somewhat grand expression. We could not afford to improvise. One thing was certain: the present system wasn't the best. If a compressor in charge of the whole cooling system becomes damaged, there is simply no cooling anywhere anymore. On top of this that thing was a noisy monster. In the cooler September days already the temperature outside and inside the kitchen was nearly unbearable on account of the waste heat. In order to provide some cooling for the compressor a ventilation fan had been installed at the suppliers' entrance, and that thing roared like an airplane. Also the location wasn't really suitable, but another location was not easy to be found; this vast, roomy
basement hardly offered an alternative, partly on account of the waste heat, partly on account of the distance. In the back of the beer cellar I eventually discovered a tiny room containing the ventilation units for kitchen and restaurant. This place seemed suitable. At the beginning of December 1987 the ice cube machine for the lounge quit and had to be repaired. I looked around for a cooling specialist. Some guest recommended me to call a certain Rolf Richard in a small town nearby. The man came and fixed up the machine without any difficulty. We came to talk. He told me that he just had set up for himself and that he would be glad to perform any work he'd be entrusted with. He had, so he told me, two good employees, I told him about our technical problems with the cooling system, and how I was eager to find a global solution to the energy problem. Together we discussed the problem thoroughly and examined all the possibilities. One possibility, to reclaim the waste heat of the compressors in order to gain hot water was dropped quickly. It was apparent that the cellars, and particularly the wine cellar, were submitted to very irregular temperatures, from 10øC in winter to over 20øC in summer. An air conditioning for the wine cellar was a necessity. But if we brought the compressors for this wine cellar, for the vegetable refrigerator and for the deep freeze cell under a hood, and if we dug a hole above this hood into the dining room's concrete floor, the proper heating of the room was assured. In the Summer the waste heat could dissipate outside through a cellar window. Along the same line of reasoning, if we dug a hole above the central heating room in the restaurant, we could reclaim the waste heat of this heating room. And eventually, if we decided for a decentralized solution with regard to the principal installations, and three compressors were to be used - one for the beer cellar and the lounge in the basement, one for the two
counters on the main floor and one for the cold room in the kitchen and the little built-in refrigerator in the back room behind the counters - and a hole were to be dug through the concrete floor between the little room behind the beer cellar and the restaurant, so we could spare the totality of the heating costs for the main floor. A luminous idea. Mister Richard had in the meantime replaced the compressor for the old vegetable refrigerator, to my full satisfaction. I had no hesitation to really get into business with him. I knew that the days of the old main compressor were counted. I also knew about the state of our finances. We had to handle it cautiously. Our first preoccupation was to provide relief to that old compressor. The biggest chunk by volume was the beer cellar. And so I requested Mister Richard to install an air conditioning unit in the beer cellar, with an extension in direction of the lounge counter. I asked for the price, and he named it: Fr. 2.900,00. It seemed reasonable. At the beginning of March he went to work, with his two workers. For a short time there were two totally different cooling systems in the beer cellar. Then the old system was dismantled. The two systems were basically different and had absolutely nothing in common. The old system was hanging from the ceiling and the cold would be oozing down. The new system uses a vaporizer and the cold air is spread into the room through a propeller. In the middle of May Mister Richard presented the bill: Fr. 3.110,00. I paid without hesitation. On a fine July day of 1988, as I came at about 10 a.m. in the kitchen, the young cook said to me: "Boss, the cooling in the kitchen is dead." I walked upstairs to the counters and checked the cooling. It was really dead. Also the little built-in
refrigerator in the back room behind the counters was out. I tried the fuses: they were okay. And so, the day of truth had come. The old compressor, to which the counters in the restaurant, the little refrigerator behind the counters and the cold room in the kitchen were still connected was definitely down and out. I took the phone and called Mister Richard. He came soon, in the same afternoon, and spoke the death sentence: The old installation had done its time, it had to be replaced. I was prepared to the situation. Actually I would have been glad to keep the old installation for a few more months. We intended to provide relief little by little, as we'd disconnect the cold room first, and then the counter on the main floor. This was a state of emergency. The kitchen was not too affected, as we disposed of the beer cellar, of a day refrigerator and of an old vegetable cooler. On the main floor though they had no cooling anymore. The first task for Mister Richard and his workers was therefore to install .a new cooling system for the restaurant counters. They had to install a new compressor in the little room behind the beer cellar, draw two pipes from the compressor to the counters and install the vaporizers in the counter. Actually no world shaking task - but that thing required five or six weeks! Toward the end of August 1988 they at last started with the new installation in the kitchen cold room. This cold room was divided in two tiny under rooms, separated through a brick wall. In the course of the summer, after the old installation had definitely quit, I had taken up the dismantling of the old cooling elements. Subsequently I had removed the largest part of the separating brick wall and whitewashed the walls and the ceiling. And so everything stood ready for the assembly of the new system. But we had to wait for another six weeks before we could really use the new cooling system, which fed the cold room and the little refrigerator behind the restaurant counters.
The complete overhaul of the cooling systems in the restaurant and the kitchen had taken about three months and had been miserably executed. And the pleasant cooperation with Mister Richard was truly down the drain. In the middle of September 1988 we received the bill for the installation of the cooling system in the restaurant counters, per Fr. 3.932,05. It seemed rather steep, after the beer cellar. But a ventilation unit had been installed in the little compressor room. I paid. At the beginning of November 1988 came the bill for the installation in the kitchen cold room and the little built-in refrigerator behind the restaurant counters: Fr. 10.618,00. I called at once. I thought of an enormous mistake. The office girl confirmed the amount: Everything had been calculated correctly I called for the boss. On the following day he showed up with his two workers. I made it definitely plain to him that I'd never pay that bill . He replied that we'd meet again in Court. At the end of December I received a registered letter. A certain Mr. Dr. Egger, advocate and notary required the sum, payable within ten days. At the beginning of 1989 I set down a letter to this advocate and notary, in which I questioned the effective value of the job. On May 8., 1989 I received Mr. Egger's complaint . It read as follows: Solothurn, April 19.,1989 To District Court Solothurn-Lebern Civil Division 4500 SOLOTHURN
L A W S U I T Plaintiff Gsteiggasse 26
Rolf Richard, cooling systems, 4523 NIEDERWIL Represented through Dr. Viktor Egger, Advocate and Notary, Mailbox 324 4502 SOLOTHURN versus
Defendant:
J.C. Simonin, Restaurant Bahnhof 2540 GRANGES concerning: Claim from labor contract Formal request
The defendant may be required to pay through legal decision to the plaintiff the sum of Fr. 10.618,- along with a 5% interest as of 01.01.1989. Along with the legal costs. JUSTIFICATION 1 In the defendant's restaurant there was a cooling system, a compressor for all the cooling units. This compressor has not been installed by the plaintiff. But the plaintiff was called twice in order to repair this compressor Means of proof: Examination of the parties. In the course of the summer 1988 the defendant requested the plaintiff to take the cooling system of the beer cellar and lounge off the main compressor and to install a separate cooling unit for these premises. The plaintiff submitted an offer which the defendant accepted at once. Subsequently the plaintiff separated the counters in the restaurant from the central
compressor and set a separate compressor. The defendant paid for this job without making difficulties. Means of proof: Examination of parties. At the end of August the old compressor eventually broke down, which had not been set up by the plaintiff. The cold room and the refrigerator were not cooling anymore. The defendant telephoned the plaintiff and requested the immediate repair of the damages, as he had banquets and was depending on the cooling system. That was Friday, August 26, 1988. The plaintiff abandoned his work and drove at once with his employees to Granges. As the defendant was lamenting about not being able to keep the establishment open over the week end the plaintiff felt compelled to set up a provisory installation. He had to open the kitchen ceiling in order to draw a 17 meter pipe. This pipe ran directly across the kitchen, right above the kitchen stove. Since the defendant was compelled to cook, the ceiling had to be closed again. Means of proof: Doc. 1: Report of plaintiff Witness: Markus Giger, worker
A few days later the pipes were definitely set up to that end the kitchen ceiling had to be opened again. As this job was completed the defendant required that the refrigerator in the back room behind the counters on the main floor also be connected with the separate compressor. Therefore the plaintiff was compelled to open the ceiling for the third time and to install an additional pipe for the refrigerator. In addition the ventilation had to be changed, reinforcements be built and old pipes put away. The plaintiff had to change this ventilation three times. Means of proof: Doc. 2. Report of plaintiff, 31.08.1988 3. Report of plaintiff, 21.10.1988
4. Report of plaintiff, 24.10.1988 5. Report of plaintiff,28.10.1988 Witnesses Markus Giger Worker Hanspeter Richard, Worker Examination of parties On November 4., 1988 the plaintiff presented the bill for his labors, to the amount of Fr. 10.618,00. The defendant kept silent Means of proof: Doc 6. Copy of plaintiff's bill of November 4. 1988 Original to be produced. Examination of parties. There the plaintiff appealed to the undersigned advocate, who requested the defendant per registered letter to pay the above mentioned bill. The defendant answered through a letter dated January 6., 1989 and refused to pay the bill. In this letter he made some considerations which cannot remain unanswered. The defendant pretended once that the plaintiff and his employees did not have to dismantle the old installations in the kitchen's cold room. He said he did it himself. There is to be remarked that the plaintiff and his workers had to dismantle the old installation. Otherwise the new installation could not have been set up. The defendant broke down a wall. This had nothing to do with the cooling system. The defendant denies also that significant dismantling operations may have been necessary. This allegation is contested
through doc. 3. and 4.
The defendant charges the plaintiff with overcharging the bill for the restaurant counters. There is to reply that the plaintiff charges a lump sum. There are no fixed tariffs for cooling systems. Means of proof:
Doc. 7. Copy of registered letter of undersigned advocate to defendant of 23.12.1988. Original to be produced. Doc. 8 Defendant's letter to undersigned advocate of 06.01.1988 Examination of parties The defendant believes that he can plaintiff's claim through an expertise.
overthrow
the
He has produced the bill of plaintiff's competitor, a certain Beat Bucher from Bolligen. This man comes to a total amount of Fr. 6.647,Beside the fact that Mr. Bucher's letter should actually be considered as an offer and as a perfectly subjective appraisal of plaintiff's bill, it also shows that the supposed expert is working on perfectly false premises. So has Bucher for instance not the slightest idea that the plaintiff had to set up a provisorial installation and had to reckon with 104 working hours. Bucher reckons with 45 hours. He did not know either that the plaintiff had to set up ventilation canals and had to labor through a whole Saturday in order to provide cooling for the defendant. That Bucher's positions are perfectly arbitrary is shown through the fact that Bucher reckons with Fr. 8,- for a t-piece, the plaintiff with Fr. 4,95. Means of proof: Witnesses Markus Giger Hanspeter Richard Documents and reports Examination of parties The plaintiff has presented a bill for prompt and serious work. He was forced to do the work twice, as he had to set up a provisorial installation. His bill is commensurate. The defendant is legally required to pay the requested amount to the plaintiff and in addition to foot the ensuing legal costs.
The interest on the sum is demanded on account of the registered letter of Dec. 22., 1988 (Doc. 7.). Means of proof; Documents and reports Examination of parties Undersigned advocate has participate to proceedings Means of proof:
been
properly
charged
to
Power of attorney in case of contention
In the name and in commission of Plaintiff: illegible We took it easy, Klara and I. I wanted to set up the answer to this lawsuit myself. Of course I have absolutely no legal training, but I have been involved in quite a few legal quarrels in the course of my life and I have taken a good look at the jurists' methods. Besides we both feel an instinctive distaste, a diffuse distrust of that breed of people. As they say back home: "Two lawyers who are beefing in a Court of Law, it is like the two blades of a closing scissors: only that which gets caught in the middle comes to grief." Besides the financial aspect of the affair had to be considered. There simply was no money available for a lawsuit. Everything that the establishment realized so far, and even what it had not yet realized what reinvested in maintenance and overhaul. To put it plainly, our financial resources were exhausted. And so I went to work: Granges, May 18., 1989 To District Court Solothurn- Lebern
Civil Division 4502 SOLOTHURN Answer to Lawsuit in the affair Rolf Richard, Cooling Systems, Gsteiggassse 26 44523 NIEDERWIL, Plaintiff versus J.C. Simonin, Restaurant Bahnhof 2540 GRANGES, Defendant concerning: Claim from labor contract May it please the Court, to reduce the Plaintiff's claim to an amount established by experts. To examine the possibility of making use of art. 306 of the Swiss Penal Code (concerning false declaration of parties before Court) during the proceedings. To examine the possibility of making use of art. 157 Of the Swiss Penal Code (usury) To examine the possibility of disloyal management (art. 159 SPC). Should the Beat Bucher expertise be found insufficient: To name a neutral expert - engineer, or planning office in charge of delivering a new expertise. Along with the legal costs. In formal respect: Mr. Richard's lawsuit is a conglomerate of distortions, omissions and insolent lies destined to conceal a miserable performance. In material respect
We - my wife and I - have bought our establishment on October 1, 1987. One week after our takeover already the central cooling compressor broke down. I had to pay a large sum in order to repair this installation. At this time I realized that the whole installation was over aged and that it would have to be replaced sooner or later. Means of proof: Elcalor bill, 27.10.87 At the same time I became aware of the fact that the whole house had to be subjected to a thorough overhaul. as nothing had been done since the building in 1953, a commonplace in Swiss catering. This overhaul had to be preceded by a careful planning, as our financial resources are definitely not unlimited. I made my choice, so far as the cooling systems concerned, for a decentralized solution, that is, compressor for each cooling unit, room or counter. I become acquainted with Mr. Richard in November 1987 had entrusted him with a little job.
are one had and
Means of proof: Richard bill, 12.12.1987 Subsequently I had discussed the whole problem of energy and cooling in the establishment. We decided in common for a decentralized solution. He advised me to install one compressor for the beer cellar and the lounge, one compressor for the counters in the restaurant and one compressor for the cold room in the kitchen and the little refrigerator in the back room behind the counters The sense and the purpose of a decentralized solution is to prevent a generalized lack of cooling in the house, should a compressor happen to fail. We also decided in common to install these three compressors in a little room behind the beer cellar. The purpose of this disposition was to collect the waste heat either for getting hot water or for heating the restaurant. We opted for heating the restaurant. To this effect a hole was dug by a stonemason in the concrete floor between the little room and the restaurant
Means of proof: Gilomen bill. Later an old employees.
ventilator
was
installed
by
Richard's
The sense and the purpose of these explanations is to demonstrate that Mr. Richard was perfectly informed about the cooling problemin our establishment. The total amount spent for the overhaul of the establishment during the financial year 1987-88 is Fr. 118.300,- and the process is definitely not completed. Means of proof: Accounting, Balance sheet I requested Mr.Richard to set down an estimate for the cost of replacing the cooling in the beer cellar and the lounge. I entrusted him with the job. There already happened a mishap: The compressor was too weak, Mr. Richard had miscalculated. I found this rather funny, but the bill was conform to the estimate, the compressor was replaced and I paid without making difficulties. Means of proof: Richard' s bill, 20.06.1988. In May 1988 I entrusted Mr. Richard with the overhaul of a large vegetable refrigerator in the soft drink cellar. Means of proof: Richard's bill, 15.06.1988 At the beginning of November 1987 we had installed a large day refrigerator in the kitchen. The cooling capacities in the kitchen were therefore sufficient and could overcome an occasional shortage. Means of proof: Leo Meyer's bill, 08.11.1987 With the separation of beer cellar and lounge I had hoped for some respite, for I was well conscious of the fact that "the writing was on he wall". I hoped that this installation would last a few more months, but when the moment came I wasn't unprepared. I had no reasons to panic. Refrigerators were existent, in the kitchen and elsewhere.
Therefore my instruction to install the cooling in the restaurant counters first is logical, for THEY in the restaurant had truly no alternative. We in the kitchen could perfectly wait. The installation of the cooling systems in the restaurant and in the kitchen is a long series of mishaps It took an extraordinarily long time to install the cooling system in the restaurant counters. Although Mr. Richard's employees had at most a couple of meters of pipes to install. Then it came out that the compressors didn't cool in that tiny room, for lack of fresh air, so Mr. Richard ordered without my knowledge and permission to open one of the ventilation canals with the assumption that it would bring some fresh air. He actually opened the ventilation canal from the kitchen, through the hole there came the stench of grill and deep fry into the restaurant, which provoked violent - and justified complaints from the guests. The stonemason had to be rushed on the place and had to open the outside wall in order to get really fresh air into the small room. Means of proof: Gilomen bill, 26.10.1988 As mentioned already a fan had been installed in that little room. This fan I had dismantled myself. The ancient elements in the kitchen cold room got dismantled by myself, yet these operations figure on the bill. The brick wall in the cold room was pulled down by myself. This operation was indispensable, for that wall stood in the way of a proper cooling. Witnesses: Simonin-Gerber Klara, spouse of undersigned, Restaurant Bahnhof, 2540 GRENCHEN Askan Mehmet, kitchen help, Bielstrasse 134 2540 GRENCHEN Mr. Askan needs a Turkish interpreter The instructions concerning the installations at the restaurant counters and in the kitchen were clear and simple:
1) Replace the failing cooling system in the restaurant counters as quickly and economically as you possibly can. 2) Replace the failing cooling system in the kitchen cold room and in the little built-in refrigerator behind the counters as quickly and economically as you possibly can. (And, if I may ask, what else could I have ordered under the circumstances?) There had never been any talk of dismantling the old compressor. It stood uselessly around, but not in the way, it was not nuisance. The plaintiff's lawsuit reads like a bad whodunit: Page 3: "as the
defendant was lamenting..."
Maybe about rheumatism... "The pipes had to be drawn exactly above the kitchen stove..." Above the kitchen stove we find a heavy ventilation hood, which makes the installation of a gas pipe an impossible thing. Whatever is being installed beside that hood is an indifferent matter. Means of proof: Photographs of ancient installation Photograph of stove with ventilation hood Page 4: "A few days later the pipes were definitely installed. or his purpose the ceiling had to be opened again." The provisorial installation of these pipes is a technical idiocy and an economic nonsense. These pipes an - and have to - be installed once and for all. The lower ceiling is constituted of thin plates of sheet iron with holes, resting on a grid, which conceal the piping and the electric wiring. These plates can be removed for weeks on end for all I care.
" After these installations had been completed, the
defendant
requested
that
the
built-in
refrigerator be connected to the new compressor..." We are certainly dealing with the little builtin decided
refrigerator behind the restaurant counters. As mentioned already this connection had been several months before. A ventilation problem had
never
been mentioned. Page 5: his
"On November 11., 1988, the plaintiff presented bill to the defendant. The defendant kept
silent."
The plain truth is that I called Mr. Richard at once.
We were at the time on familiar terms. I thought
of a
colossal error.
The
He came with his two employees.
tone became at once very hard. For this reason
no
claims of payment have been sent to me. The
plaintiff
threatened at once with a lawsuit, and this
threat has been made true without delay.
was member
I looked around for an expert and found Mr. Beat Bucher's name in the Yellow Pages. Mr. Bucher unknown to me. It came out that Mr. Bucher is a of Swiss Technical Plumbers' Association, whose business and legal seat is to be found at the
Federal
Technical University in Zurich.
Witness: Mr. Beat Bucher, Brunnenhofstrasse BOLLIGEN Means of proof: Estimate of same
36,
3065
Page 5:
"There is to remark that the plaintiff and his employees had to dismantle the old installations. Otherwise the new installations could not be installed..." at most account saw him on
During all that time I have seen the plaintiff for ten minutes. He was simply unattainable, on of his moving from Bellach to Niederwil. As I again he described enthusiastically his vacation the Canary Islands. It has to be said once more: The old cooling installation has been dismantled by myself, with
the down had
help of one kitchen employee. The wall I tore everything to do with a rational cooling
process. Page 6: lump no
"There is to reply that the plaintiff requires a sum. For cooling installations there is simply tariff..." But possibly an article 157 or 159 SPC?
Page 6: "The defendant thinks he can bring the plaintiff"s claim to fall through a supposed expertise..." I'm not stubborn. If the Court doubts of Mr. Bucher's new
estimate I shall ask the Court to name a neutral expert. I shall admit the conclusions of the expertise without hesitation.
Page 7:
"So has Bucher no idea, etc..."
A provisory installation was under the circumstances a complete idiocy. We had a sufficient cooling capacity, also enough personnel - a cook's job has been rationalized away since. Through these incidents we have lost no business, nor have we sustained losses of foodstuffs. Means of proof: Beer sales statistics Accounting, Mr. Bucher reckons with 45 hours work for this cooling installation. Divided through two workers makes 22,5 hours, or three days' work. The point is that the work reports mentioned in the lawsuit cover two months - from 26.08.88 till 28.10.88. The dominant impression with Mr. Richard's workers was one of lack of self confidence and of seediness. They'd come for a few hours, and they'd be gone again. They were apparently short on spare parts. They used to monkey around the old installation until I ordered them to come down to brass tacks. The boss was unattainable, was hardly ever on the site and could not be spoken to. A miserable affair through and through. For the installation of beer cellar and lounge I paid Fr. 3.110,00 for an installation of comparable scope I had expected a comparable bill. At the very least I could expect to be informed, should the bill for the next installation amount to a great deal
more. I feel deeply betrayed and cheated. Yours truly, J.C. Simonin On May 22.,1989 I received following communication from District Court: In casus ACP Richard Rolf versus Simonin J.C. concerning:
claim from labor contract DECISION
1) The 19.05.1989 reply together with annexes goes back to the defendant as they do not suffice in formal respect to the formal regulations of the Code of Civil Procedure ( ยง 137) and also contain unnecessarily offending expressions ( ยง 31) 2) A ten day delay is imparted to the defendant in order to produce an adequate reply. Under the threat of closing the preliminary proceeding in case of non-compliance. The President of District Court:
illegible I was astounded. Request in this form and style had found their ways to other Courts of Law. Never had a request been returned because of vice of form or "unnecessarily offending expressions."
But possibly they were more severe in this Canton of Solothurn than elsewhere. I didn't want to lose this lawsuit. Through acquaintances I found a lawyier. His name was Daniel Hoffet, from the Schmid & Uhlmann law practice.