Wade Lahar Const. Co. v. McMinn-Echols Co.

356 S.W.2d 1, 234 Ark. 967, 1962 Ark. LEXIS 796
Supreme Court of Arkansas·Decided April 9, 1962·No. 5-2569·Published·Cited by 4 cases

Opinions

Carleton Harris, Chief Justice.

In December, 1958, Wade Lahar Construction Company, principal appellant herein, entered into a contract with the city of Little Rock for the construction of a portion of the Little Rock sanitary sewer system. On April 22, 1959, Lahar subcontracted a part of the work with McMinn-Echols Company, principal appellee herein, the latter to build the concrete manholes, and creek crossings, at designated points along the sewer line. The dispute which occasions this litigation arose over the interpretation of Section 4 of the subcontract, which provides as follows:

“The contractor agrees to pay to the subcontractor for the performance of his work the sum of $92,881.00 in current funds, subject to additions and deductions for changes as may be agreed upon, and to make payments on account thereof in accordance with Section 5 hereof.

The agreed price is a lump sum price based on using the following items to add to or deduct from, agreed total.

1. If more or less than 1,455 cubic yards of reinforced steel concrete are used, add or deduct $62.72 per yard.

2. If more or less than 107 cubic yards of fill concrete are used, add or deduct $20.00 per cubic yard.

All quantities of concrete are to be measured from neat lines as per plans and specifications furnished by the consulting engineer.”

Appellee McMinn-Echols contends that it had a lump sum contract for $92,881.00, and was to receive that amount as long as the plans and specifications, which had been prepared, were followed, irrespective of the number of cubic yards used; that items “1”, and “2” had reference only to additions to the work originally covered under the lump sum figure, and the final paragraph applied only if there were a change in plans and specifications. Lahar contends that in order to determine the amount earned under the contract, it is necessary to begin with the “lump sum” figure and, depending upon the amount of concrete actually used, add to or deduct from the agreed total. In other words, the contract was a “lump sum” contract for an agreed amount of work, with unit prices for adjustments, upward or downward, for variations of quantities. According to appellants’ evidence, the set price was placed in the bid for the purpose of establishing bonding ability. It is asserted that the court’s error in interpreting the section was principally due to the failure to give any consideration to the last sentence in Section 4, i.e., quantities of concrete were to be measured from neat1 lines.

It is admitted that $76,337.50 has been paid by Lahar to appellee for work done under the subcontract. In May, 1960, appellee construction company instituted suit against this appellant and Standard Accident Insurance Company, which had executed performance bond for appellant, alleging that it has earned $103,559.572 under the subcontract, said figure being reached on the basis of $95,097.20 for 1,516.25 cubic yards of reinforced concrete used at the rate of $62.72 per cubic yard, $2,270 for 113.5 cubic yards of fill concrete at the rate of $20 per cubic yard, $4,526.70 for additions and extras, and $1,665.67 for further extras and additions. The complaint recited that $76,337.50 had been paid, and that an unpaid balance was due in the amount of $26,707.47. Appellants answered, and contended that McMinn-Echols had earned only $81,306.91, taking the position that only 1,274.61 cubic yards of reinforced concrete, and 94 cubic yards of fill concrete had been used as specified by the subcontract. This left the amount due this appellee as $4,969.44,3 but appellants filed a counterclaim and third party complaint against McMinn-Echols, and its surety, National Surety Corporation, alleging that the former had not performed its work in accordance with the subcontract, and that Lahar had been compelled to furnish and perform items which properly were due to be furnished by McMinn-Echols; that this work amounted to $12,865.75, and that appellant construction company was due judgment of $7,896.31 over and above the total amount due McMinn-Echols. On trial, the court, sitting as a jury, held:

“1. That plaintiff, McMinn-Echols Co., Inc., is entitled to compensation from the defendants, Wade Lahar Construction Company and its surety, Standard Accident Insurance Company, for the performance of work under the sub-contract involved in this proceeding, the following sums (before taking into account amounts heretofore paid to plaintiff as set forth below); (a) $91,881.00 as the contracted lump sum amount agreed upon covering the placement of 1,455 cubic yards of reinforced con<crete and 107 cubic yards of fill concrete under the subcontract, and (b) $3,998.40, for the placement of 63 and 3/4ths additional cubic yards of reinforced concrete, at the rate of $62.72 per cubic yard, and (c) $130.00 for the placement of 6 1/2 cubic yards of additional fill concrete, at the rate of $20.00 per cubic yard; making a total of $97,009.40, of which plaintiff has heretofore been paid $76,337.50 by Wade Lahar Construction Company, leaving a balance due plaintiff in the amount of $20,671.90.
2. That plaintiff is not entitled to recover on its claims for additions and extras in the amounts of $4,526.70 and $1,665.67.”

The court also found that Lahar was not entitled to recover on its counterclaim and third party complaint, and further held that none of the parties were entitled to recover statutory penalties or attorneys’ fees from any other party or parties. From the judgment so entered, appellants have appealed. McMinn-Echols has cross-appealed from that portion of the judgment denying recovery on the claims for additions and extras in the amounts of $4,526.70 and $1,665.67, and also that portion denying penalty or attorneys’ fees.

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Wade Lahar Const. Co. v. McMinn-Echols Co., 356 S.W.2d 1, 234 Ark. 967, 1962 Ark. LEXIS 796 (Ark. 1962).

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