Subcontract art. 52. But the order-of-precedence clause is relevant only when there is an “inconsistency” in the Subcontract. Id.; see also Sperry Corp. v. United States, 845 F.2d 965, 968 (Fed. Cir. 1988) (holding that it is unnecessary to resort to an order-of-precedence clause if the contract's provisions are consistent); cf. Epic Commc'ns, Inc. v. Richwave Tech., Inc., 188 Cal.Rptr.3d 844, 853 (Cal.Ct.App. 2015) (“Where two contract provisions conflict, the ‘resulting repugnancy . . . must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract.' ” (quoting Cal. Civ. Code § 1652) (cleaned up)).
Finally, the Claims Court's holding that clause 34, instead of clause 79, is the appropriate and controlling provision of this construction contract accords with actions of the parties during performance of the contract. See Sperry Corp. v. United States, 845 F.2d 965, 970 (Fed. Cir. 1988) (citing General Warehouse Two, Inc. v. United States, 389 F.2d 1016, 1020, 181 Ct.Cl. 180 (1967)). During performance, the parties were on notice that the construction contract clause applied.
Appellant maintains that the language providing for a 15% material handling charge takes precedence over the general provision, the 7.901.6 clause. An "Order of Precedence" clause may be consulted when an inconsistency arises in a contract. Hensel Phelps Constr. Co. v. United States, 886 F.2d 1296 (Fed. Cir. 1989); Sperry Corp. v. United States, 845 F.2d 965 (Fed. Cir. 1988). However, the 7-901.6 clause merely adds further restrictions to those of the 7-103.
Similarly, the Escrow Agreement's mandate that Premier release the Second Escrow Money "upon" receipt of the Buyers' written notice indicates that the release of the Escrow Money had to occur after receipt of the notice. See, e.g., Sperry Corp. v. United States, 845 F.2d 965, 969 (Fed. Cir. 1988) (finding that "the word `upon' necessarily means `shortly afterward'"). D'Amour disputes that the Buyers had legal title to the Escrow Money when he released it to the Sellers. He asserts that he released the funds only after delivery of the documentation described in the Escrow Agreement and receipt of the Buyers' written notice.
Similarly, the Escrow Agreement's mandate that Premier release the Second Escrow Money "upon" receipt of the Buyers' written notice indicates that the release of the Escrow Money had to occur after receipt of the notice. See, e.g., Sperry Corp. v. United States, 845 F.2d 965, 969 (Fed. Cir. 1988) (finding that "the word `upon' necessarily means `shortly afterward'"). D'Amour disputes that the Buyers had legal title to the Escrow Money when he released it to the Sellers. He asserts that he released the funds only after delivery of the documentation described in the Escrow Agreement and receipt of the Buyers' written notice.