Haggerty v. Selsco

534 P.2d 874, 166 Mont. 492, 1975 Mont. LEXIS 658
CourtMontana Supreme Court
DecidedApril 29, 1975
Docket12868
StatusPublished
Cited by9 cases

This text of 534 P.2d 874 (Haggerty v. Selsco) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haggerty v. Selsco, 534 P.2d 874, 166 Mont. 492, 1975 Mont. LEXIS 658 (Mo. 1975).

Opinions

MR. JUSTICE JOHN C. HARRISON

delivered the Opinion of the Court.

This is an appeal from a judgment for plaintiffs T. G. Haggerty and F. F. Messmer, co-partners, doing business as Haggerty-Messmer Co., a partnership, in an action for foreclosure of a mechanic’s lien against a trailer court owned by defendant Selsco, a Utah corporation qualified to do business in Montana. Action was brought to recover the balance due under a [494]*494contract to erect certain buildings and install trailer court facilities. Defendant filed a cross-complaint. Trial was held in Gallatin County, Hon. W. W. Lessley presiding without a jury. Judgment for plaintiffs was in the amount of $70,680.55, plus interest at 6 percent or $6,738.85, and attorney fees in the amount of $7,500.

Plaintiffs entered into a contract with defendant for the construction of the West Yellowstone United Campground. The contract was signed on May 28, 1971, and by June 2, 1971, plaintiffs had moved onto the site and begun construction work. Time was of the essence because defendant desired to open the campground in August 1971. Plaintiffs were to construct a road system, water system, auxiliary restrooms, and finish construction of the main administration building; all work was to be completed in sixty-one calendar days.

Plaintiffs had two general superintendents on the job site during construction. One was in charge of the building, the other in charge of the sewer lagoon, site grading throughout the area, and all roads. The engineering firm of MorrisonMaierle designed the project and was responsible for overseeing construction. This firm, from its office in Bozeman, had primary responsibility of checking the project and its resident engineer, Olmstead, was in charge of the general overseeing job.

The first problem that arose was the construction of the main administration building which defendant had contracted to another company, Diamond Homes. While plaintiffs were responsible for building the toilet and shower buildings, they were only responsibile for the foundation of the main administration building. Diamond Homes was to erect it and then plaintiffs were finish off some interior work. The prefab Diamond Homes building did not arrive on the site until July 2, 1971. There was no representative of Diamond Homes there to unload it, therefore plaintiffs unloaded the building. Certain materials were unsatisfactory and another eighteen days [495]*495went by before replacement arrived. In the meantime Diamond Homes made a deal, known to defendant, with plaintiffs to erect the “A” frame building and this work began on July 20, 1971. It is estimated by Bergan, plaintiffs’ construction superintendent, that this work took from three weeks to a month. Plaintiffs billed Diamond Homes $3,382.90 for the work. Defendant, knowing of the deal made by Diamond Homes with plaintiffs, paid Diamond Homes for the work but Diamond Homes failed to pay plaintiffs.

Defendant paid plaintiffs all amounts owed, less retainage, through August 20, 1971, but has refused to make any further payments because of alleged defects in the performance of the contract and counterclaims it is entitled to liquidated damages in an amount of $200 per day for a delay of 57 days.

The contract provided that the supervising engineers, Morrison-Maierle, would decide all questions which arose concerning acceptability of materials furnished, work performed, rate of progress of work, interpretation of drawings and specifications, and all questions as to acceptable fulfillment of the contract on the contractor’s part. Two major items in the contract appear to have caused the disputes which arose between plaintiffs and defendant—the eighteen shower stalls and the road system.

The specifications called for the installation of commercial grade top quality construction showers, referred to as Sanymetal Shower-master units or their equivalent. The shower stalls installed were not of a commercial grade top quality and this was brought to the attention of plaintiffs before their installation. In addition to the fact the showers were not the kind specified in the contract, the shower bases began cracking because the shower room concrete floor was improperly laid in that it did not slope to the drains. Due to the time factor of getting the camp open, the parties agreed plaintiffs would attempt to fix the showers so they would be equal or equivalent to what the specifications called for. The problem [496]*496of what it would take to- make the units equal or better is one of the disputed issues.

. Ronald Olmstead, Morrison-Maierle’s supervising engineer charged by the contract to “* * * determine all questions as to acceptable fulfillment of the contract on the part of the contractor” testified: (1) that it would take $300 per shower to bring the installed showers up to acceptable quality; (2) to replace the existing showers with those specified it would cost $10,800; and (3) it would take $1,500 to fix the slope of the floor so it would drain.

A Bozeman master plumber Walter Savage, testified over plaintiffs’ objections that to repair and replace the shower stalls at 1972 costs it would cost $11,646 and at 1974 costs $14,886.

Plaintiff Tom Haggerty testified that to grout under all the showers and to fiberglass the eighteen showers would cost from $400 to $800.

The trial court later modified its original findings on the cost to repair and replace the shower stalls from $14,886 to $5,400. Defendant feels this figure inadequate.

The second item in dispute relates to the road system and the award of $1,500 to replace and repair the entrance and exit roads to the campground.

Engineer Ronald Olmstead testified plaintiffs’ utility superintendent Elmer Shay primed and surfaced the roads on August 19, 1971, after he was told by Olmstead that “* * * the road bed wasn’t quite ready for surfacing yet.” After this warning was ignored, Morrison-Maierle absolved itself of responsibility and informed plaintiffs they might have to come back and repair the roads. The entrance and exit roads are each about 1,200 feet in length and connect the campground with the main highway.

Olmstead further testified that, in his opinion, it would cost about $1,000 to repair the exit road; that the entrance road should have a guarantee of one year on it, b.ut that he had not [497]*497determined what it would take to repair it. He then -went on to testify that it would take $7,000 to resurface the entire area. Morrison-Maierle’s progress estimated #5 stated, in part:

“The Total Earned of $293,773.95 does not include the prime or seal oil or the crushed cover aggregate for the Exit Road. These have been deducted from the amount due at the bottom of Page 5 since the Exit Road construction is not acceptable to the Engineer or Owner.”

From this it appears that any damages arising from the exit road have already been taken out of plaintiffs’ contract sums due, but nothing was testified to as to how much the entrance repairs would be, unless the overall figure of $7,000 was used minus the $1,500 finding for the cost to repair the exit road, leaving a figure of $5,500 for repairs to the entrance road.

The campground was open and functional on September 27, 1971, and according to the supervising engineer’s estimate was 99 percent complete.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Baldwin v. National Safe Depository Corp.
697 P.2d 587 (Court of Appeals of Washington, 1985)
S.O.G.-San Ore-Gardner v. Missouri Pacific Railroad
658 F.2d 562 (Eighth Circuit, 1981)
Keith v. Burzynski
621 P.2d 247 (Wyoming Supreme Court, 1980)
Kirby v. Kenyon-Noble Lumber Co.
558 P.2d 452 (Montana Supreme Court, 1976)
Morgen & Oswood Construction Co. v. Big Sky of Montana, Inc.
557 P.2d 1017 (Montana Supreme Court, 1976)
Stewart v. Cunningham
548 P.2d 740 (Supreme Court of Kansas, 1976)
Haggerty v. Selsco
534 P.2d 874 (Montana Supreme Court, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
534 P.2d 874, 166 Mont. 492, 1975 Mont. LEXIS 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haggerty-v-selsco-mont-1975.