U.S. for Use and Ben. of Ace Sheet Metal Works, Inc. v. Bayport Const. Corp., s. 91-2323

Decision Date02 March 1992
Docket Number91-2324,Nos. 91-2323,s. 91-2323
Citation953 F.2d 641
PartiesNOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America for the Use and Benefit of ACE SHEET METAL WORKS, INCORPORATED, Plaintiff-Appellee, v. BAYPORT CONSTRUCTION CORPORATION; the Aetna Casualty and Surety Company, Defendants-Appellants, and Ways Mechanical, Incorporated, Defendant. UNITED STATES of America for the Use and Benefit of ACE SHEET METAL WORKS, INCORPORATED, Plaintiff-Appellee, v. WAYS MECHANICAL, INCORPORATED, Defendant-Appellant, and Bayport Construction Corporation; the Aetna Casualty and Surety Company, Defendants.
CourtU.S. Court of Appeals — Fourth Circuit

Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, District Judge. (CA-90-88-N)

Guilford D. Ware, Martha M. Poindexter, Crenshaw, Ware & Martin, Norfolk, Va., for appellants.

Benjamin A. Hubbard, III, Outland, Gray, O'Keefe & Hubbard, Chesapeake, Va., for appellee.

E.D.Va.

AFFIRMED.

Before K.K. HALL and NIEMEYER, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:

Bayport Construction Corp. (Bayport), Aetna Casualty & Surety Co., and Ways Mechanical, Inc. (Ways), appeal the district court's judgment holding the three defendants jointly and severally liable to Ace Sheet Metal Works, Inc. (Ace) for a sum of $21,873.07, and holding Ways liable to Bayport and Aetna on their cross-claims for indemnification for any portion of the judgment not paid by Ways. The Appellants claim on appeal that the district court erred by considering evidence concerning the custom and usage of trade in contradiction to the express terms of a construction contract and in finding what the evidence demonstrated. We find that because the contracts signed by the various parties did not clearly reveal which party was responsible for providing certain electrical devices for the construction project at issue here, the district court properly considered evidence of custom and usage in interpreting this contract. In addition, we find that the district court's determination that Ways was responsible for providing the parts in question was not clearly erroneous. Therefore, we affirm.

I

In August 1987, the United States Navy contracted with Bayport for the construction of a hazardous waste storage addition at the Navy's supply center in Norfolk, Virginia. 1 The specifications contained in the general contract provided that Bayport bore the responsibility for furnishing starters and disconnects which were accessories to the materials supplied by the contractor. Later that month, Bayport subcontracted with Ways to perform the mechanical work specified under the general contract. This subcontract specified that Ways was responsible for supplying the starters and disconnects mentioned in the general specifications.

In October 1987, Ways subcontracted with Ace for sheet metal work on the project. The subcontract provided that Ace was responsible for supplying the complete sheet metal duct system, including the accessories specified in the general contract. 2

Ace completed the sheet metal work it was contractually required to perform on September 5, 1989. Later that month, Ace President Darrell L. Mann informed Bayport that he was prepared to pursue legal action if Ace did not receive the unpaid balance of $30,246.24 it was due under its contract. When Ace did not receive payment, Ace sued Ways, Bayport, and Aetna for the unpaid balance. Ways counterclaimed against Ace, stating that it was entitled to withhold the unpaid balance from Ace because Ace had failed to provide the starters and disconnects required by the contract, and because Ace had failed to perform required demolition work. Bayport and Aetna cross-claimed against Ways for any liability to Ace.

II

At the bench trial, Mann testified that he first learned of a problem with Ace's performance of the contract on October 29, 1989. On that day, after Mann asked Ways President Tim Wilson when he could expect the unpaid balance, Wilson told Mann to call Bayport. Wilson said that because Bayport was going to backcharge Ways for Ace's deficient performance in relation to holes in the roof, Ways had to withhold payment from Ace. Mann testified that at no time during construction of the project had he received any demand from either Ways or Bayport to supply twenty-one remote disconnects and twenty-one starters for the exhaust fan units he supplied with the sheet metal duct system. 3

During trial, the district court heard testimony from two expert witnesses, Ronnie Pittman and James Nixon, who testified that in contracts containing the Navy specification at issue here, the mechanical contractor (in this case, Ways) normally provided the remote starters and disconnects. Another expert, mechanical engineer David Kinkaid, testified that the industry norm was that the subcontractor who supplied a particular piece of equipment supplied the accompanying starters and disconnects. Kinkaid further testified, however, that in general the electrical subcontractor was responsible for supplying remote starters and disconnects of the type...

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