State Highway Department v. W. L. Cobb Construction Company., 111 Ga. App. 822, 143 S.E.2d 500 (1965)
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Judgment reversed. Jordan, J., concurs. Felton, C. J., concurs specially.
Summary
Judgment reversed. Jordan, J., concurs. Felton, C. J., concurs specially.
Text
Arnall, Golden & Gregory, H. Fred Gober, Allen & Edenfield, Francis W. Allen, Weekes & Candler, John Wesley Weekes, contra.Eugene Cook, Attorney General, Richard L. Chambers, E. J. Summerour, Assistant Attorneys General, Robert S. Lanier, Deputy Assistant Attorney General, for plaintiff in error.
1. The doctrine of sovereign immunity is not applicable in an action against the State Highway Department based on a breach of its contractual obligations.
(b) Since it does not appear from the petition that the amount sued for as clearing and grubbing, and which was approved by defendant's engineers, has been paid, the demurrer attacking this item of recovery was properly overruled.
3. The motion for diminution of record is denied.
4. The instruction that the contract in question should be construed most strongly against the party preparing it was a correct principle of law. It was authorized by evidence that both plaintiff and defendant, and also the engineers of the plaintiff company in charge of construction, differed among themselves as to the interpretation in pari materia of various contract provisions which were subject to more than one construction, and that this forms the basis of this lawsuit. The defendant having procured the court to instruct the jury that it must construe certain portions of the contract in relation to each other, cannot complain that the court also instructed the jury as to the manner in which it should be construed.
5. It was not error to instruct the jury that the fact that the contract called for supplemental agreements to be in writing would not be a defense as against a defendant who authorized work thereunder without requiring such written instrument.
6. Special ground 4 of the amended motion for a new trial is without merit.
7. "A charge containing two distinct propositions conflicting the one with the other is calculated to leave the jury in such a confused condition of mind that they can not render an intelligible verdict, and requires the grant of a new trial." Tietjen v. Meldrim,
2. (a) The contract in question here is substantially the same as others dealt with in State Hwy. Dept. v. Wright Contracting Co.,
present. The petition here makes a jury question on the issue of whether the damage resulting from continued wetness which was the cause of proof-rolling failures was a liability of the plaintiff or the defendant.
(b) Paragraph 8 alleges that defendant is indebted to the plaintiff under the contract in the sum of $461.87 for clearing and grubbing wet areas. The petition with the exhibits annexed thereto by stipulation shows that the plaintiff bid $8,000 for all clearing and grubbing as a single pay item, but it does not show on its face that the defendant has paid it this sum for this purpose. Accordingly, this paragraph is also good as against demurrer.
3. The plaintiff in error filed a motion for diminution of record involving certain documents which were by stipulation made a part of the plaintiff's petition in this case. The motion is denied for the reason that plaintiff in error, had it seen fit, might have specified such documents as a part of the record in the bill of exceptions, which, however, was not done. The defendant in error is not harmed by this ruling for the reason that the petition, even without the addenda, is not subject to the demurrers interposed. Since those parts of the contract (including the contract itself, the proposal, bond, Standard Specifications, Vol. 1, plans, etc.) which the parties desired to place before the jury were introduced in evidence, and the record shows that the material referred to in the motion for diminution was not, it is not necessary to be considered by this court in ruling on the motion for a new trial. We are not confronted with the same situation as in Sikes v. Norman,
4. The court charged the jury that the contract, having been prepared by the State Highway Department, should be construed most strongly against it, and this instruction is assigned as error on the ground that, under California Ins. Co. v. Blumburg,
that the court properly instructs them as to the rules applicable in doing so. That the charge was a correct principle of law see State. Hwy. Dept. v. Wright Contracting Co.,
5. Special ground 2 assigns error on an instruction that "with respect to any claimed item of damages which you should find to be extra work under the terms of the contract, the defendant cannot defend against extra work on the ground there was no written agreement because the defendant was under a duty to obtain a written agreement for extra work." "Extra Work" is defined in the specifications as "work or materials considered necessary for the proper completion of the improvements, unforeseen when the plans and specifications were prepared, for which no unit price is provided in the proposal." Section 9.05 of the Specifications provides that when ordered and accepted extra work "will be authorized by an extra work order or by a supplemental agreement," and may be paid for by lump sum, unit price, or force account. In Wright, supra, unclassified excavation was held to be "extra work" and the principle of law here charged was laid down (p. 764). In the present case Shadburn, the defendant's engineer, was questioned about "extra work" and stated that it was "extra work that is not set up in the contract . . . the amount cannot be determined ahead of time . . . you will have, regardless of the amount, normal overruns and underruns . . . extra work would include pay items under this definition extra work . . . the way this thing reads it says it's 'for which no unit price is provided in the proposal.' But you also have extra work under the first part of that sentence where it says 'work or materials considered necessary for the proper completion of the improvement, unforeseen when the plans and specifications were prepared.' " Asked whether this was not restricted to situations where no unit price is provided in the proposal, the witness agreed that was true where no unit price is provided and countered, "But on the other hand, were the quantities for doing this provided for in the plans?" It appears that both this witness and the opinion in Wright go beyond the strict definition in the specifications, but under the evidence where the jury would normally interpret the words extra work in the usual sense rather than as words of art, the charge was not error. Section 4.04 by reason of which the instruction is contended to be error (the section requiring a supplemental agreement) was specifically stated in Wright not to be a ground of defense. No error is shown here.
6. The statement that tacit recognition by the defendant that the contractor has complied with his obligations is evidence of compliance is also a correct statement of law. Porter v. Wilder & Son,
There was a difference of opinion as to whether this was a pay item as unclassified excavation; Shadburn testified that if a weakness shows up and repairs are ordered the contractor is paid for both removing and replacing the dirt, but if after being first placed it gee too wet before the rolling and he dries it out, he is not entitled to anything. Somewhere along the line there was a proposal to pay for removing but not for replacing the material. The Department failed to keep records of this work between July 24 and August 13, and eventually Fain agreed to accept the plaintiff's records for that period of time; the dispute is for amounts owing after this time. On October 13, according to the diary entry of Haney, a Highway Department engineer: "Mr. Abercrombie, Mr. Wolford, Mr. Cone, Mr. Best, Mr. Haney, Mr. Dubois wig State met with Mr. Barber, Mr. E. J. Cobb and Mr. Hodges [with the plaintiff company] to discuss the roadway condition as to subgrade failures. The solution to the wet condition was decided to be due to bad design and it was thought that by adding six inches soil cement to the balance of the roadway, including grade changes in old road, the design would be corrected. The soil cement would have to be put in such a manner as not to be cracked up after being rolled to 100% compaction. Also discussed was leaving out certain grade changes as would not interfere with site distances. These changes would have to be approved by the Federal Government." Asked why the payments were refused, the witness said that according to Haney "because the material met the specifications and as long as the material met the specifications required for the job that he did not feel the subgrade repairs were to be paid for." This, of course, was contrary to the interpretation of the specifications by Fain and Shadburn, also employees of the defendant as Resident Engineer and Division Engineer respectively. Work was completely discontinued between October 13 and November 9, 1959, while design changes were in process, and supplemental agreements were then entered into to raise the subgrade by pulling in dirt from the shoulders and by changing the nature of the base from a soil bound macadam to a soil cement bound macadam. White testified that after August 13, 1959, he kept records of work on which the plaintiff was paid. His diary showed 15 entries. As to these he eventually stated on cross examination that all but two were reconstructed. The plaintiff, of course, contended that the reconstructed entries were wrong and that it was due a substantial amount of unclassified over that shown by the diary; also, although the last repairs were completed on October 8, a witness for the plaintiff testified that he ascertained from White and others on October 27, 1959, that they were still reconstructing the records. The plaintiff sought payment on the basis of its own records on the ground that under these circumstances the defendant's records were inaccurate, worthless, and fraudulent. Its evidence was sufficient to present a jury question of whether the items of recovery sought in paragraphs 6, 10, 11 and 14 of the petition as unclassified excavation and cost of delay were due to faulty design rather than to either the fault of the plaintiff or accidental circumstances as to which it has assumed the risk, and whether, if the former, this fact plus the conduct of the defendant in delaying to redesign the road, keeping inaccurate records, and ordering continued proof-rolling of areas where faulty design made it impossible to achieve results was "so grossly erroneous as to imply fraud, bad faith, or failure to exercise an honest judgment." State Hwy. Dept. v. MacDougald Constr. Co.,
(b) There remains an item of $461.87 for clearing and grubbing. The testimony as to this is that the area involved is outside construction lines; that the plaintiff first cut stumps, presumably to the water line, but that at a later time, also presumably after the water line had receded, a decision was made that the area would be mowed and grassed. The contractor was instructed to cut the stumps again so that this could be done, and the item is claimed as extra work over and above the specifications. Section 100.04 (b) states: "In areas outside construction lines where it will be impracticable to use power mowers in maintaining the right of way . . . shall be cut off within 6 inches of the ground line. Trees to be cut and stumps that protrude from water shall be cut off at the lowest level reached by the water during the period of construction." Where, during the period of construction, the water recedes leaving an area to be sodded and on which power mowers are to be used, the additional cutting necessitated by removing stumps is a part of the lump sum item, and the plaintiff was not entitled to extra compensation for the extra work so necessitated.
The trial court did not err in overruling the demurrers to the petition but erred in overruling the motion for a new trial.
FELTON, Chief Judge, concurring specially. 1. I concur in the judgment and in all other rulings by the majority except as noted in this special concurrence. I do not concur in the last sentence of division (2a), as follows: "The petition here makes a jury question on the issue of whether the damage resulting from continued wetness which was the cause of proof-rolling failures was a liability of the plaintiff or the defendant." I do not think that the statement goes far enough. It overlooks the question of bad faith or gross mistake. The damage might have been due to the fault of the department by reason of faulty de sign (on demurrer only) and delay in correcting it, but the jury, to hold the department liable, would have to find bad faith on the part of the department in the making of the faulty design and in the delay in correcting it. A note should be added here to the effect that there' could be no recovery for faulty design alone because the construction company was fully aware of it before it made its bid. If it gambled on the high water level and lost, it could not plead a known faulty design as a fraud upon it.
2. Division 3 of the majority opinion deals with the petition of the plaintiff in error for a diminution of record and by implication overruled the contention of the defendant in that the judgment should be affirmed on the general grounds because the 'entire contract between the parties was not introduced in evidence and was not brought up as a part of the record. I agree that a diminution of record ruling is not necessary and hold that under the facts hereinafter stated both parties are estopped to deny that the parts of the contract which were introduced in evidence contain all of the agreements, etc., necessary to a decision of all of the questions in this case, those raised by demurrers and on motion for a new trial. The Cobb Construction Company sued for damages based on an entire contract, the exact parts of which were stipulated by the parties and the stipulation was approved by the court. It was stipulated by the parties that all parts of the contract be considered as a part of the petition for the purposes of demurrer so that the voluminous material need not be physically attached to the petition. It was not stipulated that all of the different parts of the contract be considered as having been introduced in evidence. The Cobb Construction Company, though relying for recovery on an entire contract, did not introduce any part of the contract in evidence. As a consequence, one conclusion would be that there could be no recovery because of the absence of the entire contract upon which the action is in part principally based. However, in all fairness I do not think this result would follow, because the Highway Department introduced in evidence the parts of the contract which it contended governed all issues in the case, and on the other side of the ledger the construction company made no objection to the introduction of only a part of the entire contract and both parties tried the case on the basis of the incomplete contract introduced in evidence and my opinion is that both parties are estopped by an admission in judicio, in the absence of objection for incompleteness of the matter introduced, to say now that the parts of the contract introduced in evidence by the Highway Department were not sufficient for the decision of every issue involved.
3. I do not concur in the ruling in Division 4 of the opinion. It was error for the court to instruct the jury that the contract sued on, having been prepared by the State Highway Department, should be construed against it. The court should construe contracts in all cases except where there is an ambiguity and evidence as to how it should be construed authorizing more than one construction. I do not think that the department agreed for the jury to construe the contract or is estopped to except to the charge in this instance because it requested the court to charge the jury that it should construe certain sections of the contract in connection with others. The Department may have been in error in agreeing for the jury to construe sections in pari materia, which might render them plain and unambiguous, but it certainly did not mean that the flood-gates were opened for a charge that the jury should construe unambiguous provisions of a contract. Unambiguous provisions of a contract are not construed by anybody against anybody.
4. I concur in the ruling in Division 8 except that the error in the charge does require a new trial. As to the discussion of the facts in Division 8 and 8 (a) I do not agree that under any circumstances can the plaintiff recover for a faulty design of which it knew before its bid for the contract, either alone or in conjunction with delay in the correction of the design. In my opinion the only recovery which could be had in this case must be based on fraud or gross mistake on the part of the department amounting to fraud in unreasonably delaying the correction of the faulty design. In my opinion there was not sufficient evidence to show fraud or gross mistake on the part of the department in the delay in correcting the design which both parties knew was faulty and exactly why, from the time of the bidding.
1965
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This document cites
- Supreme Court of Georgia - CONTINENTAL FINANCE & LOAN CO. v. CRYSTAL LAUNDRY & CLEANERS, INC., 214 Ga. 528, 105 S.E.2.d 727 (1958)
- Supreme Court of Georgia - HORTMAN v. YARBROUGH et al., 214 Ga. 693, 107 S.E.2.d 202 (1959)
- Supreme Court of Georgia - FARLOW v. BROWN., 208 Ga. 646, 68 S.E.2.d 903
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