Home/Michigan Court of Appeals/Carl Goodwin & Sons, Inc. v. Department of State Highways

Carl Goodwin & Sons, Inc. v. Department of State Highways

190 N.W.2d 574, 33 Mich. App. 567, 1971 Mich. App. LEXIS 1804
CourtMichigan Court of Appeals
DecidedMay 19, 1971
DocketDocket No. 9799
StatusPublished

This text of 190 N.W.2d 574 (Carl Goodwin & Sons, Inc. v. Department of State Highways) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carl Goodwin & Sons, Inc. v. Department of State Highways, 190 N.W.2d 574, 33 Mich. App. 567, 1971 Mich. App. LEXIS 1804 (Mich. Ct. App. 1971).

Opinion

McGregor, J.

On April 29, 1965, the plaintiff entered into a contract with the defendant Department of State Highways for the grading and surfacing of a highway, a state project. As written, the contract incorporated hy reference the 1963 Standard Specifications for Road and Bridge Construction (hereinafter referred to as specs); under dispute here are the terms and the construction of the terms of such specs.

The contract provided in part for a total of 2,798,113 compensated cubic-yard units, also termed “overhaul units”. The number of overhaul units multiplied by a unit price establishes the compensation. An overhaul unit represents a work-quantity measure, combining both an amount or mass of earth to be moved and a distance which it is to be moved. A change either in the amount or the distance to be moved will affect the total number of overhaul units involved. Defendant specifically authorized a change in the number of compensated cubic-yard units (or overhaul units); pursuant to this authorization, there was an actual decrease of 355,480 overhaul units, due to a change in the hauling distance, and a decrease of 670,333 overhaul units, due to a change in the amount of borrow excavation, or a total decrease of 1,025,813 overhaul [569]*569units, which represented a decrease of nearly 37% from the total overhaul units as contemplated by the original contract. Plaintiff demanded payment for the actual cost of the overhead resulting from the decrease, pursuant to specs § 1.04.03; the defendant refused to make such payment. On March 20,1969, the plaintiff petitioned the Court of Claims for payment. Subsequently, both parties filed motions for summary judgments, and on June 17,1970, an order was issued granting defendant’s motion and denying plaintiff’s motion. Plaintiff timely filed a claim of appeal with this Court.

“Overhaul” is defined in specs § 2.10.01 as follows :

“Overhaul is the transportation of excavated material over a distance in excess of 1,000 feet.”1

[570]*570In the instant case the contract contained the unit price of $.15 per compensated cubic-yard unit as compensation for overhaul. The determination as to the actual compensation to the contractor is as follows (from specs § 2.10.06): [Exhibit A.]

Quantity of overhaul Compensated units per material in cubic yards cubic yard from table Unit

§ 2.10.06 Price

X x Y x Z = Compensation e. g. 10 x .03 x .15 = .045

The table is constructed so that the contractor is paid less, per station, as the number of stations increases, “station” representing a distance travelled.

[571]*571From the preceding, it can be determined that the unit price remains constant, while the factor from tables in § 2.10.06 is variable according to the distance travelled.

In the Court of Claims, the judge stated:

“In the absence of other provisions for adjusting compensation as the result of changes in quantities of work, it would seem that the general provisions of § 1.04.03 should be controlling. But in this case, not only do the specifications provide another method for adjusting compensation in a specific case, i.e., overhaul distance (2.10.06), but § 1.04.03 itself requires that where other methods of adjusting compensation are provided in the specifications, the latter shall be controlling.”

The trial judge’s interpretation was that the language of § 2.10.05 of the specs was controlling-regarding any changes in compensation as a result of any change in the hauling distances. The language to which he referred was:

“This method in computing overhaul shall be considered to provide adjustment in compensation for variable unit cost due to changing of haul distance.”

The trial judge then stated that, since the parties agreed that 355,480 of the decreased overhaul units resulted from changes in overhaul distance, compensation was to be governed by § 2.10.06, in which case there was a decrease of 670,633 overhaul units as a result of a change in the amount of borrow excavation.

The compensation adjustment for borrow excavation changes was to be governed by § 1.04.03 of the specs:

“If the quantity of any item of work required to complete the project varies from the original esti[572]*572mate for said item of work by 25 per cent or less, the payment for the quantity of said item shall Fe made at contract unit price.”

Since the decrease in overhaul units resulting* from borrow excavation was only about 23% from the original estimate of 2,798,113, it was not enough to produce any adjustment under § 1.04.03.

Section 2.10.05 of the specs provides that the method of computing overhaul shall be to provide “adjustment in compensation for variable unit costs”.

Section 1.04.03 of the specs provides, in pertinent part:

“Unless otherwise provided in these specifications, proposals or plans, adjustments in unit prices for increased or decreased quantities shall be governed by the following: * * * .” (Emphasis supplied.)

It is uncertain whether the language of § 2.10.05, “adjustments in compensation for variable unit costs” is to be equated with otherwise providing “adjustment in unit prices” of § 1.04.03. In construing contract provisions, we must attempt to effectuate the intentions of the parties. From the record before us, we are unable to do so.

In view of the foregoing, summary judgment is improper. This cause is reversed and remanded to the Court of Claims, to take testimony as to the circumstances which existed at the time the contract was made. Costs to plaintiff.

All concurred.

[573]

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Bluebook (online)
190 N.W.2d 574, 33 Mich. App. 567, 1971 Mich. App. LEXIS 1804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carl-goodwin-sons-inc-v-department-of-state-highways-michctapp-1971.