Turner Brooks of Ohio, Inc. v. Bowling Green State University

554 N.E.2d 956, 51 Ohio Misc. 2d 1, 1989 Ohio Misc. LEXIS 9
CourtOhio Court of Claims
DecidedSeptember 25, 1989
DocketNo. 88-04881
StatusPublished
Cited by3 cases

This text of 554 N.E.2d 956 (Turner Brooks of Ohio, Inc. v. Bowling Green State University) is published on Counsel Stack Legal Research, covering Ohio Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turner Brooks of Ohio, Inc. v. Bowling Green State University, 554 N.E.2d 956, 51 Ohio Misc. 2d 1, 1989 Ohio Misc. LEXIS 9 (Ohio Super. Ct. 1989).

Opinion

Shoemaker, J.

In 1986, plaintiff, Turner Brooks of Ohio, Inc. (“Turner Brooks”) entered into a joint venture with F. L. Barron, Inc., doing business as Carpetalk. The purpose of the joint venture was to perform interior refurbishing work for defendant Bowling Green State University.

The members of the joint venture entered into contractual arrangements with defendant for work to be performed at two student housing facilities located on the campus of defendant. A dispute arose between the parties regarding plaintiffs performance, which precipitated the filing of plain[2]*2tiffs complaint and defendant’s counterclaim. On July 7, 1987, Carpetalk assigned to plaintiff the totality of its rights, title and interest in this contractual arrangement with defendant. Thus, the sole plaintiff hereinafter is Turner Brooks, which initiated the present causes of action on April 25, 1988. On June 26, 1989, this matter came on for trial concerning the issues of liability and damages. The court has duly considered the evidence and arguments presented and renders the following findings and conclusions.

Plaintiffs complaint against defendant consists of two counts. An examination of these counts must begin with a recitation of the relevant factual background regarding this case. In late March 1986, defendant circulated request for bid No. 8456 to obtain carpet installation in student rooms, corridors and public areas of Conklin West, a student housing facility on defendant’s campus. This request for bid contained a completion date of August 1, 1986. Defendant subsequently cancelled this bid request.

On June 2, 1986, request for bid No. 8581 was dispersed for the Conklin West carpet installation project. This request did not contain a completion date. On or about June 9, 1986, plaintiff submitted to defendant a bid proposal, which was an offer to perform the Conklin West carpet installation. On June 19, 1986, plaintiff was telephonically notified by a representative of defendant that plaintiff would be performing the carpet installation work. On June 20, 1986, defendant’s purchase order No. 27282 was forwarded to plaintiff. This purchase order was an acceptance of plaintiff’s offer to perform the installation. Relying upon this purchase order, plaintiff immediately placed an order for carpet to be installed at Conklin West. Customarily, the receipt of the carpet ordered will occur within six to eight weeks. In this case plaintiff received the carpet on July 29,1986, five weeks after the order. Plaintiff timely commenced work at the Conklin West project on July 30, 1986,

During the installation of the carpet at Conklin West, plaintiff incurred additional expenses due to an abnormal floor surface which was undetectable upon visual inspection. The floor had deteriorated, leaving an uneven surface which required the application of a smoothing compound of thin concrete to level the surface. As a result of this unforeseen labor, plaintiff incurred an additional expense of $3,534. Plaintiff completed the Conklin West project on or about August 22, 1986. Defendant withheld $7,708.69 from the contract proceeds as a setoff for custodial overtime purportedly incurred from plaintiff’s alleged delay in completion. Furthermore, defendant refused to compensate plaintiff $960, representing necessary overtime costs incurred by plaintiff at the Conklin West facility.

Count two of plaintiff’s complaint concerns the following factual scenario. On May 5, 1986, defendant released request for bid No. 8480-B concerning the furnishing of material, equipment and labor to supply and install carpet and wall base in the Delta Sigma Theta (“Delta”) housing facility. This bid request stipulated a completion date of July 25, 1986. Plaintiff submitted its offer to perform the Delta work on May 15, 1986 by forwarding a bid proposal to defendant. On July 5, 1986, defendant sent plaintiff purchase order No. 26922, which the court finds was an acceptance of plaintiff’s offer. Plaintiff’s second claim is premised upon unreimbursed overtime expenses of $932 from the Delta project.

The initial issue to consider regarding the Conklin West project is to [3]*3determine whether a binding completion date was expressed in the contract. Request for bid No. 8581, as previously discussed, as agreed to by the parties, represents the contract for the installation of carpet at Conklin West. After reviewing said contract and considering the testimony at trial regarding the contract, the court finds that there is neither an express nor an implied completion date contained in the agreement. Defendant suggested that the August 1, 1986 completion date specified in request for bid No. 8456, which was cancelled by defendant, was binding upon the plaintiff. The court finds this argument devoid of merit as it is clear that defendant either inadvertently or purposefully failed to insert a completion date into the contract for the Conklin West project and the plaintiff cannot fairly be bound by a prior rescinded bid solicitation.

Considering the purchase order date of June 20, 1986, along with the attendant circumstances, defendant’s claim of a good faith belief that an August 1, 1986 completion date was required stretches credulity. To permit defendant to impose such a requirement would allow the defendant to unilaterally alter the material terms of a contract and in the process penalize the plaintiff by binding plaintiff to an unreasonable or impossible completion date. Furthermore, the testimony at trial demonstrated that the plaintiff could expect to receive the carpet between six and eight weeks after said carpet was ordered. This uncontro-verted testimony bolsters the conclusion that a completion date of August 1, 1986 was completely unreasonable in light of the surrounding circumstances.

Since the court has concluded that the completion date of said contract was unspecified, the terms of the contract can be classified as indefinite. Absent a specific time for contract compliance, a reasonable time for performance is implied. Harris v. Ohio Oil Co. (1897), 57 Ohio St. 118, 127, 48 N.E. 502, 505. See, also, 18 Ohio Jurisprudence 3d (1980) 97, 97-98, Contracts, Section 196. Consequently, the court must determine what time span constituted a reasonable time for plaintiff’s completion of the Conklin West project. Reasonable time is not measured by hours, days, weeks, months or years, but is derived from the surrounding conditions and circumstances which the parties had in contemplation upon execution of the contract. Wagner v. Menke (App. 1935), 20 Ohio Law Abs. 501, 505. See, also, 18 Ohio Jurisprudence 3d (1980) 100, Contracts, Section 197.

There is no question that both the plaintiff and defendant knew that this carpet installation project needed to be completed by the time the students at Bowling Green State University returned to commence the fall term. Defendant argues that plaintiff should have known time was of the essence and therefore should have completed the project several weeks prior to the beginning of the fall term. Time of performance is not of the essence in a contract unless made so by its terms, or by act of the parties. Hubbard v. Norton (1875), 28 Ohio St. 116, paragraph four of the syllabus. See, also, 18 Ohio Jurisprudence 3d (1980) 95, Contracts, Section 195. Since the contract at issue fails to express any such provision, the court concludes that the plaintiff acted reasonably by completing the Conklin West project within six weeks.

Plaintiff, as previously mentioned, started working on this project on or about June 20, 1986, by ordering the carpet.

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Cite This Page — Counsel Stack

Bluebook (online)
554 N.E.2d 956, 51 Ohio Misc. 2d 1, 1989 Ohio Misc. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-brooks-of-ohio-inc-v-bowling-green-state-university-ohioctcl-1989.