Dunlap v. Warmack-Fitts Steel Co.

370 F.2d 876
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 11, 1967
DocketNos. 18437, 18438
StatusPublished
Cited by4 cases

This text of 370 F.2d 876 (Dunlap v. Warmack-Fitts Steel Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunlap v. Warmack-Fitts Steel Co., 370 F.2d 876 (8th Cir. 1967).

Opinion

MATTHES, Circuit Judge.

Warmack-Fitts Steel Company, hereinafter referred to as contractor, is a general contractor specializing in erection of steel and construction of plants requiring steel construction work. Homer Dunlap and the other parties named in the caption as appellants will hereinafter be referred to as owners. They contemplated the erection of a 200 ton per day lime plant in Marble City, Oklahoma. Kennedy-Van Saun, hereinafter referred to as KVS, is a large manufacturer of machinery for the production of finished lime products. KVS designed the Marble City plant, supervised construction of the assembly work involved, and supplied the necessary KVS equipment to owners under separate contract.

The owners and contractor entered into a series of three written contracts for the erection of the plant. Contractor substantially completed the plant on June 26, 1964, over two months beyond the completion date of April 22, 1964 set forth in the third contract. A dispute arose as to the balance due under the written contracts and for labor and materials furnished by contractor which allegedly was not encompassed by the contracts. The contractor claimed that the [879]*879owners were indebted to it in the sum of $48,231.21. The owners by counterclaim prayed judgment against appellee for $55,000.00 as damages for unnecessary delay in completion of the project. After an extended trial, the court, Honorable John E. Miller, found that the contractor was entitled to recover the sum of $45,-303.21, and interest at 6% from June 26, 1964. Judgment was entered for that amount and for dismissal of the counterclaim.

No. 18,438 is an appeal by contractor from that part of the judgment disallowing its claim for attorney fees.

The trial focused almost entirely on contractor’s claim for extra work and materials and on owners’ counterclaim. It became evident from the outset of the litigation that, by and large, the issues as framed by the pleadings presented questions of fact. In appeal No. 18,437 the owners contend in effect that the lower court’s findings of fact are contrary to the overwhelming weight of the evidence, and are therefore clearly erroneous within the meaning of Rule 52(a), Fed.R. Civ.P.

As thus posited, the scope of our review is limited. We do not, of course, retry disputed factual matters or substitute our judgment for that of the trial court on fact questions. We only determine whether the court’s findings of fact are clearly erroneous, that is, whether on the whole record it convincingly appears that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

Some of the important background facts were not controverted. The first written contract, entered into on December 24, 1963, related to the construction of buildings, foundation work, and erection of the KVS equipment. The stated consideration was $128,700.00. The second contract, entered into on March 5, 1964, required the contractor to furnish equipment in the nature of materials handling conveyors for a consideration of $53,071.00. The third contract, entered into on March 17, 1964, covered additional items on various buildings and construction of a penthouse for a consideration of $14,919.00. The sum of $166,-090.40 has been paid to contractor, leaving a balance due on the written contracts of $30,599.60. The parties stipulated as to certain undisputed extras due contractor and undisputed credits due owner, which admittedly left a balance due contractor in the amount of $26,924.00. Additional extras asserted by contractor raised the total amount claimed to $47,-883.21. The owner, on the other hand, in addition to its counterclaim, asserted additional credits of $4,457.50, which would have reduced the total amount due contractor to $22,466.50.

At issue in the trial were a total of sixteen items relating to claimed credits and extras, most of which the court resolved in favor of contractor. Owners’ main theme of appeal is that the trial court accepted contractor’s position “solely on the bare and unsupported testimony” of Bill Fitts, an officer of contractor. The credibility of a witness, however, in a non-jury case, particularly where the testimony is conflicting, is a matter which is left to the sound discretion of the trial court, who alone can observe the demeanor of the witnesses and assess the probative value of the evidence offered. Cf. Mitchell v. Goodyear Tire and Rubber Company, 278 F.2d 562, 565 (8th Cir. 1960). Moreover, the fact that the testimony of an interested party is uncorroborated does not in and of itself preclude its acceptance by the trial court, but relates only to its probative value in light of all the other evidence in the case. See Lieberman v. Matson Navigation Company, 300 F.2d 661, 662 (9th Cir. 1962). Cf. Schoenberg v. Commissioner of Internal Revenue, 302 F.2d 416, 419 (8th Cir. 1962). Owners argue further, however, that their position is “supported not only by the testimony of the interested appellant, Dunlap, but also by the testimony of disinterested third parties and/or by documentary evidence.” The owners do not deny that the contractor is entitled to be compensated for labor and materials not embraced in the specifications and draw[880]*880ings which detailed the work involved and constituted a part of the written contracts.1 Indeed, the case was tried on that theory and the owners concede as much here. The owners contend, however, that a number of the disputed items were not in fact extras, but were clearly encompassed either by the written contracts or by the reference drawings which were made a part of the contracts. We pass now to the specified items.

CLAIMED EXTRAS

I.

The original contract required the contractor to drill sixty-four holes four and one-half feet deep and to place therein re-enforcing steel and grouting material. This operation is referred to in the record as “foundation dowel placement.” After the contract was signed but before work commenced, the owners decided that additional dowel holes would be required in connection with the construction of the foundation. The effect of this change was that 106 holes, approximately twelve feet deep with a total footage of about 1,252 feet, would have to be drilled, re-enforced and grouted, as compared to the original plans calling for sixty-four holes with a total footage of approximately 288 feet. The contractor contemplated drilling the sixty-four holes four and one-half feet deep with a jack hammer. In order to drill the holes the required depth of twelve feet or more a different drilling outfit was needed. The owners had such a drilling rig on the premises, which they used to drill the 106 holes at the greater depth. The question litigated in the trial court was whether the use of owners’ drilling rig fully compensated contractor for the extra labor and grouting materials made necessary by the change in the contract. The trial court accepted contractor’s version of the agreement in regard to the extras and allowed it $2,529.91.

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370 F.2d 876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-v-warmack-fitts-steel-co-ca8-1967.