456 F.2d 316 (9th Cir. 1972), 25302, Henry C. Beck Co. v. Ross Island Sand & Gravel Co.

Docket Nº:25302.
Citation:456 F.2d 316
Party Name:HENRY C. BECK COMPANY, a corporation, and Utah Construction & Mining Co., a corporation, doing business as Beck-Utah, a Joint Venture, Plaintiffs and Appellants, v. ROSS ISLAND SAND & GRAVEL CO., a corporation, Defendant and Appellee.
Case Date:February 14, 1972
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 316

456 F.2d 316 (9th Cir. 1972)

HENRY C. BECK COMPANY, a corporation, and Utah Construction & Mining Co., a corporation, doing business as Beck-Utah, a Joint Venture, Plaintiffs and Appellants,

v.

ROSS ISLAND SAND & GRAVEL CO., a corporation, Defendant and Appellee.

No. 25302.

United States Court of Appeals, Ninth Circuit.

February 14, 1972

         Rehearing Denied March 24, 1972.

Page 317

[Copyrighted Material Omitted]

Page 318

         Carl R. Neil (argued), of Lindsay, Nahstoll, Hart, Duncan, Dafoe & Krause, Portland, Oregon, for plaintiffs-appellants.

         James H. Clarke (argued), George L. Kirklin, of McColloch, Dezendorf, Spears & Lubersky, Portland, Or., for defendant-appellee.

         Before CHAMBERS, CARTER and WRIGHT, Circuit Judges.

         JAMES M. CARTER, Circuit Judge.

         This damage suit for breach of contract was tried to the court without a jury. It resulted in a judgment for defendant-appellee, hereafter Ross Island.

         The appellant (hereafter Beck), raises the following questions:

         (1) Did the trial court err in Finding of Fact XI and Conclusion of Law I that the Standard Specifications for Ready Mix Concrete, C94, was made applicable to the concrete here in question by the specifications in the construction contract between Beck and the owner of the building?

         (2) Was ASTM C94, 1967 edition, improperly relied upon by the trial court?

         (3) As to the sufficiency of the evidence and the court's findings, Beck contends the concrete, supplied by Ross Island, failed to meet compressive strength standards. As to these findings, three claims are made by Beck as to the lack of compressive strength:

(a) as to Class B-1 concrete delivered July 6, 1966, and placed in the floor slab of the north wing of the fifth floor;

(b) as to Class A-1 concrete delivered on July 8, 1966, and placed in four girders of the south wing of the fourth floor;

(c) as to Class B-1 concrete delivered July 8, 1966, and placed in the floor slab of the fourth floor.

         I

          Finding XI and Conclusion I

          Beck attacks Finding of Fact XI stating that the standards of ASTM "Standard Specifications for Ready Mix Concrete, C94" were made applicable to the concrete in question by the "construction contract specifications." Attack is also made on Conclusion of Law I referring to the same contract as the "construction contract between plaintiffs and the building owner." Beck points out that none of the contract between Beck and the building owner was incorporated into the contract between Beck and Ross Island; that the contract between Beck and Ross Island consisted solely of the purchase order dated December 30, 1965, which was Exhibit "B" to the pre-trial order, and only required that Class B-1 concrete achieve a compressive strength of 3,000 psi at 28 days after pour.

         We think that Beck is correct in that the court was mistaken in its reference to the construction contract between Beck and the owner of the building and that there was nothing in the purchase order, Exhibit "B" to the pretrial order, which made reference to the standards of ASTM. However, we think there was no error in this respect and that the

Page 319

contention is an after-thought on the part of Beck.

         Our reasons are as follows:

         The contention was never raised at any time until the filing of Beck's opening brief. In the motion for new trial, etc., Beck's counsel, Mr. Nahstoll, stated that the 1964 edition of ASTM C94 "was the edition applicable to the terms of this contract;" and Mr. Nahstoll stated in his affidavit supporting his motion for a new trial as follows: "The 1964 edition of ASTM-C94 which was in effect and applicable to the contract between plaintiff and defendant during the time the defective concrete complained of in this case was supplied by the defendant. . . ." Beck also offered in evidence certain portions of ASTM C94.

         Thus, even in the motion for a new trial the contention was not raised and was raised for the first time in Beck's opening brief. The parties having tried the case as if ASTM C94 was part of the specifications to be followed, Beck may not now raise this contention on appeal.

         II

The use of ASTM C94, 1967 Edition

          The concrete was poured in July 1966. The trial court relied on ASTM C94, 1967 edition. However, the fact that it was a 1967 edition was not brought to the trial court's attention until raised by appellant on motion for a new trial.

         The 1967 edition was used in the trial, and although apparently no date appeared on it, appellant's counsel could have ascertained its date. In fact, appellant placed part of ASTM C94, 1967 edition, in evidence.

         The motion for a new trial, etc. set forth the 1964 and 1967 editions of ASTM C94 and was supported by counsel's affidavit that after trial he had ascertained that a 1967 edition had been used and relied upon.

         The question of whether the 1964 edition was newly discovered evidence within the well-known rule, and a new trial should have been granted, was one for the court's discretion. We find no abuse thereof.

         III

The concrete delivered to the fifth floor

          The claim as to the fifth floor was for "delay damages." The concrete was not replaced. Beck ceased work after a 7-day test. It contends that the concrete did not harden until 42 days, instead of 28 days called for in the contract.

         We hold that there was sufficient evidence to support the trial court's findings that the Class B-1 concrete poured on the fifth floor satisfied the compressive strength requirements of the purchase order.

         Moreover, correspondence beginning August 31, 1966 and invoices from appellant to October 26, 1967, which purported to contain an itemization of Beck's damages, made no reference to the fifth floor. The complaint filed December 5, 1967, makes no claim for the fifth floor. The claim was finally asserted in late 1968, two years and 17 depositions after the event.

         IV

The class A-1 Concrete for girders on the fourth floor

          The Class A-1 Concrete was delivered July 8, 1966, for the girders on the fourth floor. When the slab was determined to be defective, Beck insisted that the girders as well as the slab be removed. The girders were removed over Ross Island's objection. The girders were sound.

         There was conflicting testimony as to whether the...

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