Hobbs Construction & Development, Inc. v. Colonial Concrete Co.

461 So. 2d 255, 10 Fla. L. Weekly 48, 1984 Fla. App. LEXIS 16459
CourtDistrict Court of Appeal of Florida
DecidedDecember 26, 1984
DocketNo. AY-168
StatusPublished
Cited by3 cases

This text of 461 So. 2d 255 (Hobbs Construction & Development, Inc. v. Colonial Concrete Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hobbs Construction & Development, Inc. v. Colonial Concrete Co., 461 So. 2d 255, 10 Fla. L. Weekly 48, 1984 Fla. App. LEXIS 16459 (Fla. Ct. App. 1984).

Opinion

NIMMONS, Judge.

Hobbs Construction and Development, Inc. (Hobbs) and its surety, Insurance Company of North America (INA), defendants in the court below, appeal from an award by the trial court, sitting non-jury, in favor of Colonial Concrete Company, d/b/a Southern Concrete (Southern), in an action brought by Southern for sums allegedly owed for concrete which Southern supplied in connection with the 1982 renovation and expansion of the Gator Bowl in Jacksonville. Hobbs was the general contractor. We affirm the final judgment.

The facts summarized in our opinion are either those recited in the trial court’s final judgment or, where not so recited, based upon evidence which supports the trial court’s award.

On December 17, 1981, Hobbs entered into a contract with the City of Jacksonville whereby Hobbs agreed to do expansion and renovation work on the Gator Bowl for a total contract price of $12,801,400. The work was to be substantially completed by the next Florida-Georgia football game which was scheduled for November 6,1982.

Prior to signing the purchase order for the concrete, Southern’s vice president and general manager met with Hobbs’ project superintendent at the construction site and discussed certain terms, including, but not limited to, prices for certain concrete materials. Overtime was discussed and it was agreed that the delivery schedule for concrete materials would be between 7:00 a.m. and 7:00 p.m., Monday through Friday, and 7:00 a.m. to 5:00 p.m. on Saturdays. A [257]*257purchase order was prepared at Hobbs’ office in Panama City where it was signed by Hobbs’ president and forwarded to Jacksonville where it was signed by Southern’s sales manager.

The purchase order, which covered some but not all of the materials purchased by Hobbs from Southern, contained the following:

Above prices are to remain in effect for duration of the job. There will be no additional charges for concrete on Saturdays or for overtime. There is no minimum on concrete to be shipped per order.

At the outset of the job, Hobbs, viewing the project as a so-called “6-10 job,” commenced work on a 6-10 basis, i.e., six days per week and ten hours per day.

By early summer, the concrete pouring schedule established by Hobbs increasingly involved deliveries into the night. Initially, Southern complied with Hobbs’ extended scheduling. However, Southern eventually began to refuse to deliver concrete if the pouring was going to take until 9:00 or 10:00 p.m.

In mid-July, 1982, Hobbs’ project manager initiated discussions with Southern’s general manager in order to reach agreement on a night schedule for the delivery and pouring of concrete. By this time, Hobbs had determined that it needed the cranes, which were used for hauling the concrete buckets, to do other things during &e day. In response to Hobbs’ project manager’s request, Southern’s general manager quoted the price of $140.00 per hour as the service charge for deliveries from 7:00 p.m. to 7:00 a.m., Monday through Saturday, and from 5:00 p.m. Saturday to 7:00 a.m. Monday, with a four-hour minimum. A day or so later, Hobbs’ project superintendent went to Southern’s office, and the parties agreed upon the above extended schedule terms except that the service charge would be $120 instead of $140. Hobbs’ project superintendent mentioned to Southern’s general manager that he would get him a purchase order. Hobbs’ orders for nighttime pourings under the new arrangement commenced that night and continued until the latter part of October 1982.

For each of the many pourings which were ordered by Hobbs for nighttime and Sundays, Southern prepared a special delivery ticket designating the date, time period and an amount of time designated as “overtime.” The deliveries were accepted by Hobbs’ agent who signed the tickets when the concrete was delivered to the site.

Southern forwarded to Hobbs’ home office periodic billings for overtime under the July extended schedule agreement. Hobbs paid the first such bill on or about August 15, 1982, in the amount of approximately $15,000.00.1 As Hobbs continued to utilize nighttime and Sunday pourings by Southern, Southern forwarded similar billings for overtime to Hobbs. Although Hobbs’ home office personnel advised Southern on more than one occasion that payment for these billings would be forthcoming, no further payment for the overtime was ever received by Southern. Finally, as the project neared completion nine days before the Florida/Georgia football game, Hobbs notified Southern that Hobbs would not pay the overtime billings, citing as the basis for refusal the language of the original purchase order. Accordingly, Southern stopped further deliveries of concrete. Thereupon, Hobbs stopped payment on its October 22 check for $42,099.96 which had been sent to Southern in payment of materials less a deduction for the sum previously paid by Hobbs on August 15 for overtime.

Hobbs contends that: (1) assuming ar-guendo that Hobbs’ agents had authority to contract for their principal, the July [258]*258agreement was void because of lack of consideration; (2) its agents lacked authority to bind Hobbs to the July overtime agreement; and (3) the evidence established Hobbs’ affirmative defense that Southern charged Hobbs for materials which Southern never delivered to the job site. We will discuss such contentions in the above order.

Hobbs’ first point depends upon the conclusion that the evidence presented required a finding by the judge, sitting as trier of the fact, that around-the-clock pourings, including Sundays, were contemplated by the parties in the January purchase order. We have no difficulty in rejecting that position. The record includes competent testimony that a normal or standard work week for a concrete supplier is eight hours per day, five days per week. As we earlier noted, the trial court found, based upon the evidence, that the parties originally contemplated a delivery schedule of between 7:00 a.m. and 7:00 p.m., Monday through Friday, and 7:00 a.m. to 5:00 p.m. on Saturdays, a schedule which was in excess of the above norm. We cannot say that the brief provision in the January purchase order that “[tjhere will be no additional charges for concrete on Saturdays or for overtime” necessarily meant that Southern was obligated to deliver and pour at the purchase order price at any time of the day or night including Sundays. If that is, indeed, what Hobbs intended, it should have spelled out such intent in more explicit terms.

We conclude that Southern’s agreement in July to deliver and pour at any time, day or night, including Sundays, certainly constituted consideration over and above that which was given for the January agreement and, therefore, rendered the July agreement enforceable.

We turn now to Hobbs’ next contention that its agents lacked authority to bind Hobbs to the July agreement for overtime. Hobbs asserts that the trial court erred in finding that Hobbs’ agents had apparent authority to agree to the overtime arrangement. Significant to this issue is the fact that, as work on the project progressed, it became apparent to Hobbs that it would be necessary to materially alter its performance, in order to complete the project on time, by resorting to an around-the-clock pouring schedule with its concrete supplier. Having affirmed, as discussed above, the trial court’s finding that such á schedule was not provided for in the original agreement, we are entitled to assume that Hobbs knew

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Bluebook (online)
461 So. 2d 255, 10 Fla. L. Weekly 48, 1984 Fla. App. LEXIS 16459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hobbs-construction-development-inc-v-colonial-concrete-co-fladistctapp-1984.