United States ex rel. White Masonry, Inc. v. F. D. Rich Co.

434 F.2d 855
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 19, 1970
DocketNo. 24962
StatusPublished
Cited by9 cases

This text of 434 F.2d 855 (United States ex rel. White Masonry, Inc. v. F. D. Rich Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States ex rel. White Masonry, Inc. v. F. D. Rich Co., 434 F.2d 855 (9th Cir. 1970).

Opinion

KILKENNY, Circuit Judge:

F. D. Rich Company, Inc., the prime contractor under an agreement with the United States, appeals from a judgment in favor of the subcontractor, White Masonry, Inc.

Appellant was awarded a general contract for the construction of certain family housing units at Elmendorf Air Force Base in Alaska. Appellee was the masonry subcontractor under the general contract. The action was prosecuted against appellant and its surety under the Miller Act,1 for the balance claimed due on the subcontract. Appellant counterclaimed for the cost of parging2 certain basement walls. Appellant claims that the subcontract speaks for itself and that it is entitled to judgment on its counterclaim as a matter of law. Appellee asserts: (1) that the contracts were ambiguous, (2) that the cost of the particular parging was excluded by agreement of the parties, and (3) as an alternative, that a mutual mistake was made between the parties as to whom should do the parging. The district court, after a full trial, accepted the views of the appellee and entered findings and conclusions in support of a judgment in its favor.

THE CONTRACT

That part of the prime contract between appellant and the United States touching on the subject of masonry provided :

“4-07 Erection: D. Parging of basement walls: The outside of the basement walls in contact with the earth shall be parged with two coats of mortar, each %" thick.”

The drawings of the Corps of Engineers, made a part of the prime contract, in depicting a “typical wall section” on the family housing for the Colonels’ quarters indicated “parging & waterproofing” on the basement walls, while the drawings of the Corps on the same type of “typical wall section” for the family housing, 1250 and 1400 square foot units, indicated nothing with respect to parging or waterproofing the basement walls on those buildings. Only the parging on the latter is here in dispute. Appellee concedes that he was required to parge the basement walls on the Colonels’ quarters.

Pertinent parts of the subcontract between appellant and appellee are:

(1) “The second party (appellee) shall furnish and place all * * * parging * * * required to complete the work of the hereinbefore mentioned masonry sections of the specifications.”
(2) “In so far as the portion of the general contract being performed by second party is concerned, the second party assumes all the obligations of the first party.”
(3) “All of the above work3 shall be performed agreeably to all the contract drawings * *
(4) “ARTICLE IV. Should it appear that the work hereby intended to be done or the material to be furnished, or any of the matters relative to said work or materials, are not' sufficiently detailed or explained on the said drawings, * * * second party shall apply to the first party for such other and further drawings or explanations as may be necessary * *

THE EVIDENCE

The testimony of the various witnesses makes it crystal clear that the Corps [857]*857of Engineers, the appellant and the appellee were aware of the conflict between the specifications and the drawings at the time the appellant and appellee were making their respective bids. They all agreed that a reasonable construction of the material submitted permitted a conclusion that parging of the basement walls on the buildings, the subject of this dispute, was not required. For that matter, it was not until after construction of the basement walls of those buildings was well under way that a representative of the Corps notified the appellant that parging was required. Evidently, there was a dispute between representatives of the Air Force and the Corps of Engineers as to whether parging was required. The Air Force prevailed. After the notice, appellant continued to take the same position and stood by that position throughout the administrative hearings and on the appeal to the Armed Services Board of Contract Appeals.

Mr. White, the president of the appellee, testified that just prior to the bid opening, he met with Mr. Muellner, the project manager for appellant, in the Westward Hotel in Anchorage. Appellee was invited to the suite which appellant had rented to discuss the masonry bid. At this meeting, the parging was inquired into by Muellner. White testified that he told Muellner and his associates that he did not figure the parging on the basement walls, other than the parging on the Colonels’ quarters. Someone during the course of this meeting said that he had called the Corps of Engineers and that the latter learned that the contract did not call for parging all of the buildings or something to that effect. White related how he and Mr. Muellner opened the plans and the drawings and put them on the floor or the couch and then discussed the ambiguity. Appellee had prepared work sheets in connection with making his bid and these work sheets did not include the cost of the parging on the buildings at Elmendorf, other than the Colonels’ quarters. The parging on the latter was included in his figures on the bid. Appellee was not aware of any claim that he should do the parging on the other buildings until after Muellner received the notice from the Corps. Muellner does not dispute White's version of the hotel conversation, nor the fact that they examined the plans, drawings and specifications at that time. He says he does not recall the conversation. For that matter, his testimony in his deposition tended to fully corroborate White’s version of the meeting and what occurred. At the trial, Muellner attempted to explain his deposition testimony, but the explanation was not accepted by the trial judge. We believe this hotel conversation and understanding prior to appellee’s bid was in full conformity with Article IV of the subcontract.4 Muellner’s agreement in the hotel conversation, after an examination of the drawings, that parging was not required on the basement walls, other than the Colonels’ quarters, certainly amounted to an explanation of the ambiguity between1 the language of the specifications and the data as shown on the drawings. Not only did Muellner take that position in the hotel conference, but appellant continued to hold to that position until after it had lost the ease before the Armed Services Board of Contract Appeals. True enough, Muellner testified he told White that the specifications would govern over the drawings. This is denied by White. Muellner, at the trial, conceded that there was an ambiguity between the plans and the specifications, but contended that there was no way to resolve this ambiguity before making the bid. Be that as it may, the appellant accepted the appellee’s bid well knowing that the appellee had not included in his bid the cost of the disputed [858]*858parging. The trial court made a finding in favor of the appellee on this issue and made a special finding that where the evidence was in dispute, he elected to accept and give greater weight to the testimony of the witness, White. Additionally, the trial court found that not until the masonry work was being completed did any one tell the appellant that parging was supposed to be included in the subcontract and until that time both the appellant and the appellee felt that parging was not required on the basement walls in question.

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434 F.2d 855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-white-masonry-inc-v-f-d-rich-co-ca9-1970.