Mississippi State Highway Commission v. Dixie Contractors, Inc.

402 So. 2d 811, 1981 Miss. LEXIS 2112
CourtMississippi Supreme Court
DecidedJuly 29, 1981
DocketNo. 52695
StatusPublished
Cited by1 cases

This text of 402 So. 2d 811 (Mississippi State Highway Commission v. Dixie Contractors, Inc.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mississippi State Highway Commission v. Dixie Contractors, Inc., 402 So. 2d 811, 1981 Miss. LEXIS 2112 (Mich. 1981).

Opinion

SUGG, Justice.

This is the second appeal1 of this case and involves a claim of Dixie Contractors, Inc. against the Mississippi State Highway Commission for highway construction performed by Dixie under a contract with the Commission on a federal aid project.

At the conclusion of the first trial in the Chancery Court of the First Judicial District of Hinds County, the chancellor awarded Dixie a judgment against the Commission for the sum of $359,763.96. The award consisted of two items. (1) $334,763.96 which the chancellor found to be due Dixie for work performed under Pay Item No. 401-23-P. (2) $25,000 which represented the amount of retainage under the contract. In its answer the Commission admitted it owed Dixie the $25,000 retain-age and alleged it had offered, and was willing to pay, the $25,000 to Dixie if Dixie would give the Commission a release evidencing a final payment on the contract.

On the first appeal, the case was reversed and remanded for a new trial because the chancellor had erroneously excluded evidence. At the second trial, the record of the first trial, including all exhibits, was introduced in evidence, and both parties presented additional evidence. The chancellor rendered a final decree awarding judgment in favor of Dixie against the Commission in the amount of $359,763.96.

The contract is a unit price contract. Bidders were furnished with the contract documents which included plans, specifications, special provisions, and proposal sheets. The proposal sheets covered numerous items called pay items, and most pay [812]*812items were bid on the basis of a specified amount for each unit. Each pay item carried an estimated quantity which the bidders converted to a dollar amount by multiplying the unit price bid by the number of estimated units shown on the proposal sheet. The extensions of the items were then added and the result was the total bid on the entire project. The bidder submitting the lowest total bid is the low bidder and is ordinarily awarded the contract regardless of variations on the individual items making up the total. Dixie was the low bidder on the project with a bid of $4,577,488.45 and was awarded the contract. Dixie and the Commission executed a contract on May 13, 1968 which contained the following provision:

It is understood and agreed that the advertising according to law, the notice to creditors, the instructions to bidders, the proposal for the contract, the specifications, the revisions of the specifications, the special, provisions, and also the plans for the work herein contemplated, said plans showing more particularly the details of the work to be done, shall be held to be, and are hereby made a part of this contract by specific reference thereto and with like effect as if each and all of said instruments had been set out fully herein in words and figures.

The first page of the proposal and the contract documents furnished each bidder contains the following provision:

Current (1956) Edition of the Standard Specifications for Road and Bridge Construction adopted by the Mississippi State Highway Department and Approved by the Commissioner of the U.S. Bureau of Public Roads is made a part hereof fully and completely as if attached hereto, except where superseded by the Special Provisions, or amended by Revisions of the Specifications contained herein.

This case involves the amount due Dixie under Pay Item 401-23-P which covered unclassified excavation (plating material) (F.P.M.).2 The Commission contended Dixie was entitled to be paid for 92,711 cubic yards of unclassified excavation (plating material), but the chancellor held Dixie was entitled to be paid for an additional 230,-871.7 cubic yards of unclassified excavation (plating material) at the bid price of $1.45 per cubic yard.

We are of the opinion that the contract and contract documents support the position of the Commission, and the chancellor erred when he allowed Dixie additional compensation under Pay Item 401 — 23—P. We are not reversing the chancellor on a finding of fact but are reversing on his construction of the contract. The manifest error rule has no application. We stated in the first opinion:

We note also that the manifest error rule has little, if any, application in cases such as this resting upon construction of documentary evidence. S. & A. Realty Co. v. Hilburn, 249 So.2d 379 (Miss. 1971). (375 So.2d at 1206)

The contract covered the construction of 12.285 miles of Interstate Highway No. 10 in Hancock and Harrison Counties. The construction began at the Jordan River in Hancock County and ended at the Wolf River in Harrison County.

The first .9 mile section of the project, beginning of project (BOP) to Station 870, was a continuous embankment. The remaining 11.4 miles section of the project was from Station 870 to the end of the project (EOP) and was through rolling hills which had either cut sections or fill sections.

From BOP to Station 870 the plans required the top soil, the unstable material, and muck to be stripped from the entire portion of the construction limits. The muck was to be removed and disposed of by the contractor. The top soil and unstable material were to be removed and stockpiled beyond the outer limits of construction for plating the slopes. The embankment, except for 12 inches of plating material on the outer slopes of the embankment and on [813]*813slopes in the median, was to be constructed from material furnished by Dixie and obtained by it from sources outside of the highway right-of-way.

In performing its contract on the .9 mile section from BOP to Station 870, Dixie stripped the plating material and muck between the outer limits of construction, stockpiled the plating material, and disposed of the muck. Dixie was paid for excavating the plating material under Pay Item 23A at the rate of 62$ per cubic yard and was paid for hauling the plating material to the stockpile under Pay Item 32A. Dixie was also paid for excavating and disposing of the muck under Pay Item 401-23-F at the rate of 97$ per cubic yard. Dixie then furnished and put in place the embankment material and was paid for this item under Pay Item 401-36 at the rate of $1.30 per cubic yard. After completing the embankment, Dixie then removed the plating material from the stockpile, placed it on the slopes and was paid for this work under Pay Item 401-23-P at the rate of $1.45 per cubic yard measured in its final position.

There was no disagreement between Dixie and the Commission for the work performed and the pay for such work on the .9 mile section. However, there is disagreement between Dixie and the Commission for the amount of plating material for which Dixie should be paid in that portion of the project from section 870 to the end of the project referred to in the testimony as the 11.4 mile section of the project.

Dixie contends it is entitled to be paid for plating material under Pay Item 401-23-P for all unclassified excavation material suitable for plating which was excavated from the cut sections and from under the core embankment. The Commission contends that Dixie is entitled to be paid only for the plating material placed on the back slopes, foreslopes and in the median area in the cut sections.

General Exhibit 5, introduced at the first trial and reintroduced at the second trial, is a typical section depicting a xh cut section and a xh

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Bluebook (online)
402 So. 2d 811, 1981 Miss. LEXIS 2112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-state-highway-commission-v-dixie-contractors-inc-miss-1981.