Summary
affirming entry of judgment in favor of Mississippi State Highway Commission in light of construction specifications providing in part that a contractor waives all claims for interference, delay or damages
Summary of this case from PYCA Industries, Inc. v. Harrison County Waste Water Management Dist.Opinion
No. 38076.
November 12, 1951.
1. Evidence — contracts — testimony that party did not read specifications a part of contract inadmissible.
Where standard road construction specifications were expressly made a part of a highway construction contract, an offer by the contractor to testify that a certain section thereof was not called to his attention was properly excluded.
2. Contracts — highways — road construction.
Where standard specifications for road construction work adopted by the Highway Commission are expressly made a part of a road construction contract and provide that contractor waives any and all claims for interferences, delay or damage on account of the removal or nonremoval of pole lines and other specified interferences, the contractor is not entitled to recover from the Commission for loss of use or rental upon construction equipment which allegedly was held idle due to presence of electric light poles along the route.
3. Contracts — highway — road construction — engineering expenses.
Under the construction contract aforestated the contractor was not entitled to a peremptory instruction that no deductions could be made against it for engineering expenses arising out of contractor's failure to complete the work within the contract period.
4. Interest — balance due on state highway contract.
An instruction that the contractor in the case aforestated was not entitled to interest for any balance due him by the Highway Commission was correct, since interest, as such, is not allowable against the State or one of its agencies.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
W. Harold Cox, for appellant.
I. The trial court erred in holding, as it did, that the appellant waived in its contract its claim for damages occasioned appellant by reason of appellee's failure to remove the electric power line from the right of way as it agreed to do. Sec. 22.02, Miss. Standard Specifications for Road Bridge Construction, P. 58, and Sec. 4.06, P. 17.
(a) The appellant had no notice or knowledge of the alleged waiver and never consented thereto independently of the contract. 56 Am. Jur., Secs. 14, 15, pp. 114, 115; 67 C.J., Sec. 2, p. 299; Supreme Lodge KP v. Quinn, et al., 78 Miss. 525; Van Noy Interstate Co. v. Tucker, 125 Miss. 260; Evans Terry Co. v. Liberty Mills, 127 Miss. 120.
(b) Unquestionably the reference in the contract in suit to the specifications in this book effectually incorporated into the contract every specification in the entire book for the performance of this work but such reference in the contract incorporated nothing therein which may not be aptly characterized as a specification for this work and thus did not by such reference incorporate this alleged waiver into this contract. Pitts Const. Co. v. City of Dayton, 237 Fed. 305; 17 C.J.S. Sec. 299, pp. 716-717; Hill Combs v. First National Bank of San Angelo, 139 F.2d 740; Perry v. U.S., 146 F.2d 398; Guerini Stone Co. v. Carlin, 240 U.S. 264, 36 S.Ct. 300.
II. The trial court erred in holding that appellant was not entitled to damages against appellee for the breach of this contract in the form of rent on its heavy dirt moving equipment which appellant was obliged to keep on this job and idle for several months by reason of the presence of this electric power line in this right of way. U.S. v. Standard Rice Co., 65 S.Ct. 145, 323 U.S. 106; Wunderlich v. Highway Commission, 183 Miss. 428.
III. The trial court erred in declining to award appellant interest on its earned estimates and rentals as damages for breach of the contract in suit by the appellee. Swann, Auditor v. Edward Turner, 23 Miss. 565; State Highway Comm. v. Wunderlich, 194 Miss. 119, 10 So.2d 453.
By way of summary of our position on this appeal, it is submitted that the trial court erred in the respects indicated in giving defendant its instruction Number One and instruction Number Three, and its instruction Number Four and instruction Number Seven (limiting the issue in this case to the propriety of the engineering expense). The trial court likewise erred in refusing appellant's instruction Number One, its instruction Number Four, its instruction Number Five and its instruction Number Six. The trial court likewise erred on this record in refusing appellant's request for a peremptory instruction for $4054.53 because the undisputed proof in this record showed that it had earned on this contract that amount and that the appellee was solely responsible for the delayed performance of this contract which occasioned its claim for engineering expense which it undertook to deduct from that amount. Certainly the appellee would not be thus permitted to take advantage of its own wrong and capitalize upon its own default in and breach of the contract in suit by allowing it any amount of such engineering expenses which were sustained solely by reason of its own fault in the connection. Aside from that insurmountable obstacle to an allowance of any amount of such engineering expense, there is no proof whatever in this record of any engineering expense but the only proof is that on the records of the appellee that appellant is charged on its last several estimates with engineering expense amounting to $2355.51.
For the several errors of the trial court assigned and argued herein, it is respectfully submitted:
(1) That appellant is entitled to a judgment in this Court in the amount of $4054.53, together with six percent. interest thereon from November 9, 1948 (the date of approval of the final estimate on this job) and all costs; if mistaken therein:
(2) Then appellant submits that it is entitled to a reversal of the judgment of the trial court and that it is entitled to have this case remanded to the trial court for a new trial on its claim for rental on its equipment on this job from November 16, 1946, April 17, 1947, and to have submitted to a jury the question as to whether or not interest should be awarded in the exercise of a sound discretion in this case under the circumstances present in this suit; and another jury should be permitted to say whether or not any engineering expense whatsoever should be allowed the appellee under the facts in this case without being told by the trial court, as in the trial of this case, that they could not consider that the power poles had damaged or interfered with the appellant in any manner or to any extent. Such was the import and effect of the appellee's instruction Number Three. The view of the trial court taken upon the legal effect of the alleged waiver is in large part, if not solely, responsible for the consequent error of the court in this respect.
It is submitted that this alleged waiver never became integrated into the contract in suit by reference to the specifications and that appellant never agreed thereto and was never called on to do so and every necessary element of a waiver is wholly lacking in this case. In either event on either score mentioned, the appellant simply has not been awarded that amount to which it is so justly entitled under the facts and circumstances in this case.
Matthew Harper, Assistant Attorney General, Overstreet Kuykendall, and Lotterhos Dunn, for appellee.
I. Appellant is bound by the terms of the construction contract, including that provision relating to the waiver of damages for delay in removing power poles. Secs. 1.20, 4.06, 7.05, 9.02, 22.02, Mississippi Standard Specifications; Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739; Copiah Hardware Co. v. Johnson, 123 Miss. 642, 86 So. 369; Continental Casualty Co. v. Pierce, 170 Miss. 67, 154 So. 279; Messina v. New York Life Ins. Co., 173 Miss. 378, 161 So. 462; Shapleigh Hardware Co. v. Spiro, 141 Miss. 38, 106 So. 209, 44 A.L.R. 393; Miss. Power Light Co. v. A.E. Kusteres, 156 Miss. 22, 125 So. 429; Sec. 8038 Code 1942; Continental Jewelry Co. v. Joseph, 140 Miss. 582, 105 So. 639; Alliance Trust Co. v. Armstrong, 185 Miss. 148, 186 So. 653; McCubbins v. Morgan, 199 Miss. 153, 23 So.2d 926; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Supreme Lodge v. Quinn, 78 Miss. 525, 29 So. 826; Van Noy Interstate Co. v. Tucker, 125 Miss. 260; Evans Terry Co. v. Liberty Mills, 127 Miss. 120, 89 So. 809; Wilson v. Gamble, 180 Miss. 499, 177 So. 363; Hansen v. Covell, 218 Cal. 622, 24 P.2d 772; Richard v. Clark, 88 N.Y.S. 242, 43 Misc. 622; Granford v. Brooklyn Heights Railroad Co., 154 N.Y.S. 16; Sundstrom, et al. v. State, 144 N.Y.S. 390, 159 App. Div. 241.
II. Appellant failed to lay any proper predicate for damages on account of the alleged loss of equipment rental. Secs. 4.01, 8.03, 9.02, 9.04, Miss. Standard Specifications; 15 Am. Jur., Sec. 27, p. 420; Annotation, 81 A.L.R. 282; Railroad Co. v. Echols, 54 Miss. 264; Scott Garrett v. Green River Lumber Co., 116 Miss. 524, 77 So. 309; Mars v. Hendon, 178 Miss. 157, 171 So. 880; Yazoo M.V.R. Co. v. Fields, 188 Miss. 725, 195 So. 489, 196 So. 503; S.H. Kress Co. v. Sharp, 126 So. 650; State Highway Comm. v. Brown, 168 So. 277; Grantham v. McCaleb, 30 So.2d 312; Montgomery Ward Co. v. Hutchinson, 159 So. 862; Crystal Ice Co. v. Halliday, 64 So. 658; Yazoo M.V.R. Co. v. Consumers Ice Power Co., 67 So. 657; Vicksburg M.R.R. Co. v. Ragsdale, 46 Miss. 458; Blair v. United States, 147 F.2d 840, 150 F.2d 676.
III. The court below properly held that appellant was not entitled to his claim for interest. Swan v. Turner, 23 Miss. 565; Moore v. Tunica County, 143 Miss. 821, 108 So. 900; 49 Am. Jur., p. 286, "States", etc., Sec. 75; Anderson v. Issaquena County, 75 Miss. 873, 23 So. 310; City of Natchez v. McGehee, 157 Miss. 225, 127 So. 902; Moorhead Drainage Dist. v. Pedigo, 49 So.2d 378; State Highway Comm. v. Wunderlich, 194 Miss. 119, 10 So.2d 453; 11 So.2d 437; State Highway Comm. v. Mason, 192 Miss. 576, 6 So.2d 468.
IV. Appellant's claim No. 3 was submitted to the jury under proper instructions and there was no error committed with respect to this part of the case. State Highway Comm. v. Edward E. Morgan Co., Inc., 49 So.2d 684.
We briefly summarize our position in this case as follows:
The Standard Specifications were a part of this contract. One section of those Specifications, Sec. 22.02, contained the express covenant by which any right to damages for delay in the removal of the power poles was expressly withheld. This was just as much a part of the construction contract as Sec. 4.06, which deals with the same subject matter and which is specifically invoked and relied upon by appellant. When appellant invokes and relies upon Specification Sec. 4.06 he vouches for the application of the remaining sections of these Specifications. He cannot be heard to invoke one section and repudiate another section of the same specifications dealing with the same subject matter.
In specific answer to appellant's contentions, we say that appellant is bound by the terms of his contract, including the Standard Specifications, and, since he claims no fraud or overreaching, he cannot be heard to say that he did not read the contract or that he supposed its terms to be different.
Another complete answer to appellant's argument lies in the fact that the power poles were the exclusive responsibility of the power company and by Section 5.06, appellant as contractor specifically agreed to save the State harmless from all damages arising out of any delay by the power company.
Another complete answer to appellant's claim for damages, which is limited to a demand for equipment rental, lies with the fact that appellant did not request permission to move his equipment from the project and use it elsewhere and made no effort whatever to avoid the damages which he now claims.
Finally, we respectfully submit that the authorities are clearly against the allowance of any claim for interest, and, as to the remaining claim involving engineering expense, this was properly submitted to the jury under appropriate instructions which gave to appellant much more than he was actually and legally entitled to.
The verdict and judgment in this case is for $3,000.00, which includes $1699.02, which appellee admitted owing and tendered into court and an additional amount which the jury verdict disallowed from the engineering charge.
Appellant brought suit against the appellee, hereafter referred to as the Commission, in the aggregate sum of $68,349.42, which amount was later enlarged by amendment. The action is under a contract for construction work upon 5.04 miles of right of way in Choctaw County. The agreed time for completion was one hundred and fifty working days, which period would have expired May 2, 1947, but for a credit of thirty-eight days which were not charged against the contractor. The work overran this period by eighty-three working days. Recovery is sought for loss of use or rental upon a substantial amount of heavy construction equipment which allegedly was rendered idle and without use due to the presence of electric poles along the route. It was alleged to be the duty of the Commission to arrange for their prompt removal.
It is agreed that but for certain alleged credits claimed by the Commission, there was a balance due under the contract upon its completion of $4,054.53. Credits were set up against this balance, amounting to $2,355.51, charged as engineering expense incurred by the Commission on account of the overrun in the completion time. A tender of the difference in the amount of $1,699.02 was rejected by the contractor. Further claim was made for interest upon the balance so withheld. There is no contention that in a proper case such engineering expense may be charged where made necessary by a failure to perform the contract. The basis for attack upon this charge against, or credit upon, the balance due, is the same as that asserted to support the claim for loss of use or rental of the idle equipment.
We examine first the claim for loss of use of the equipment. Section 22.02 of a booklet entitled "Mississippi Standard Specifications for Road and Bridge Construction" issued by the State Highway Department and dated January 9, 1940, contains the following paragraph: "Buildings, structures, fences, pipe lines, pole lines, and other public utilities and private improvements, that would interfere with the construction and which are to be removed by the owners or the State, will not be held as a charge or responsibility of the Contractor except that the Contractor waives any and all claims for interference, delay, or damage on account of their removal or non-removal."
Section 4.06 of said book contains the following paragraph: "Removal and Disposal of Structures and Obstructions. All buildings, public utilities, or other private and public improvements, which are to be removed from the right-of-way and replaced or reconstructed at new locations, shall be removed by the Department or by the owners under a separate agreement. It is anticipated that such obstructions will be removed and disposed of in advance of construction operations. In the event the obstructions to be moved by the owners or the Department are not out of the way by the time set for commencing work, the Contractor shall not interfere with said property but shall notify the Engineer of such conflicts with construction in order that prompt arrangements may be made for their removal."
Section 9.02 is also in point. It is as follows: "Scope of Payment. The compensation, as herein provided, constitutes full payment for the complete work, including all material, labor, tools, and equipment necessary for performing all work contemplated and embraced under the contract; for all loss or damage arising out of the nature of the work; for all loss from the action of the elements, except as otherwise provided; for any unforeseen difficulties or obstructions which may arise or be encountered during the prosecution of the work until its final acceptance by the Engineer; for all risks of every description connected with the prosecution of the work; also, for all expenses incurred by or in consequence of suspension or discontinuance of the work as herein specified, * * *".
If the above sections are made part of the contract, a claim for loss of use by such delay could not be sustained. Appellant contends that the provisions of Section 22.02 are not properly to be classed as specifications, such term being restricted in its application to details of construction, and substantial authority is invoked to support such view. It is sought, by classifying the latter part as a waiver, to exclude it from the field of construction details. Yet this sentence is effectually tied in with a reference to the removal of obstructions, particularly power poles, which, appellant insists, are to be removed in compliance with the same contract. The quoted section appears in the book of Standard Specifications under Division 2, titled Construction Details, and under a sub-title, Construction Methods. However, the actual contract executed by the appellant contains upon its front page in bold type the following:
"Note
"Standard Specifications for Road and Bridge Construction Adopted January 9, 1940, by the Mississippi State Highway Department and approved by the Commissioner of the U.S. Public Roads Administration are made a part hereof fully and completely as if attached hereto, except where superseded by the Special Provisions, or amended by Revisions of the Specifications contained herein."
Both the contract and the bond of appellant refer to the proposal, the specifications and the revision of the specifications, the special provisions, and also the plans as being integrated into and made a part of the contract. The proposal states: "The Specifications are the Standard Specifications of the Mississippi Highway Department (approved and adopted January 9, 1940)." Appellant conceded in his testimony that the book of specifications is part of his contract. (Hn 1) He offered to testify that Section 22.02 was not called to his attention and that he was not familiar with it and an error is assigned for the action of the court in sustaining an objection thereto. This ruling was correct and we hold further that (Hn 2) this section was part of his contract and precludes a recovery for the item of loss of equipment use and rental. The trial court instructed the jury to exclude this item from consideration and refused instructions to the opposite effect, requested by the defendant. We find such course proper. We need not, therefore, examine the appellee's contention that there was not sufficient proof of a causal connection between the delay in having the poles removed and the asserted loss, or that such loss, if recoverable, was not satisfactorily proved.
In view of the undertaking — which from the angle of the appellant is unfortunately informal — to see that the poles were removed, it is not difficult to build a plausible semblance of estoppel against the Commission whose alleged delay in effecting such removal culminated in charges for engineering expenses incurred thereby. Beneath the surface of this contention difficulty may lie, since a contrary view would make it possible for the Commission unreasonably to delay the exercise of its powers to compel removal of obstructions under Code 1942, Section 8038(f) or under Section 4.06 of the Standard Specifications, thereby laying the foundation for unreasonable engineering expense.
However, we need not solve this problem since instructions were procured by the contractor forbidding such charges as were incurred as a result of delay caused by the Commission. Indeed the jury unquestionably followed these instructions, since the credit of $2,335.51 claimed by the Commission was reduced to $1,054.53, resulting in a verdict for the contractor in the amount of $3,000. The Commission conceded in its seventh instruction that the only issue remaining was the item of engineering expense.
(Hn 3) The peremptory charge to find for the full amount of the balance otherwise due under the contract in the sum of $4,054.53 was properly refused.
(Hn 4) An instruction was given the Commission excluding interest as an item of appellant's claim. Instructions for the contractor were refused which authorized such allowance. We find that the ruling of the court was proper in both instances. We are not dealing with a case brought by a plaintiff against one of the agencies of the State under Section 17 of the Constitution of 1890 for damaging property for public use. This was the situation in State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345, 6 So.2d 468, where the loss of use of the amount represented by the damage was declared to be included in the definition and import of "due compensation."
The nonliability of the State or its subdivisions for interest is well-settled. Our latest expression is found in Moorhead Drainage District v. Pedigo, 210 Miss. 284, 49 So.2d 378. But it is argued that an allowance of interest was permitted against this same Commission in State Highway Commission v. Wunderlich, Miss., 10 So.2d 453; Id., 194 Miss. 119, 11 So.2d 437. The additional charge there allowed was not conventional interest as authorized by our statute but was permitted as damages or added compensation and not as of course. If it be argued that this is the gist of the definition of interest, eo nomine, and that there results only a play upon words, the answer is found in the fact that legal interest, properly so called, is six percent, and while damages may be computed upon such basis as an analogy, it does not automatically follow as a necessary legal incident or in any particular amount. The refused instruction was peremptory as to the inclusion of "interest on all sums due the plaintiff", etc., and the instruction given to the Commission denied the right to "recover any item by way of interest". The right to recover some additional amount to be fixed by the jury as damages was not presented.
The voluminous record of testimony has been carefully examined but our conclusions are based upon legal and not factual issues, and no extended discussion is undertaken.
Answer to the other assignments is to be found in the conclusions here reached. We find no reversible error and the cause is affirmed.
Affirmed.
Hall, J., took no part in decision of this case.