Alpine Const. Co. v. Water Works Bd. of City of Birmingham

• Decision Date: 30 November 1979
• Citation: 377 So.2d 954
• Parties: ALPINE CONSTRUCTION COMPANY v. The WATER WORKS BOARD OF the CITY OF BIRMINGHAM, Alabama. 78-443.
• Court: Alabama Supreme Court

Page 954

377 So.2d 954

ALPINE CONSTRUCTION COMPANY v. The WATER WORKS BOARD OF the CITY OF BIRMINGHAM, Alabama.

78-443.

Supreme Court of Alabama.

Nov. 30, 1979.

S. P. Keith, Jr. of Keith, Keith & Keith, Birmingham, for appellant.

Crawford S. McGivaren, Jr., George G. Lynn, Birmingham, for appellee.

PER CURIAM.

This is an appeal by Alpine Construction Company, Plaintiff below, from the entry of a directed verdict in favor of Defendant/Appellee, the Water Works Board of the City of Birmingham. Alpine brought suit to recover $30,000 which it claims was wrongfully withheld pursuant to the liquidated damages provision of its construction contract with the Board. The $30,000 constitutes less than one percent of the total value of the contract, which was $3,867,931.

The issues raised on this appeal concern the central question whether the Board was entitled under the terms of the contract to assess liquidated damages against Alpine due to its failure to complete the contract within the specified time. Alpine contends that the Board was not entitled to assess liquidated damages because:

1. The Board waived its right to damages;

2. The failure to complete on time was the fault of the Board, or, alternatively, the fault jointly of the Board and Alpine;

3. The contract was impossible to conclude within the specified time; and

4. Alpine was either absolutely entitled to an extension of time under the contract, or, alternatively, the contract provision providing for an extension was unclear and ambiguous and should have been submitted to the jury.

I.

The basis for Alpine's waiver contention is that the Board did not terminate the contract for breach when the contract completion date had passed, but instead allowed Alpine to continue work until the project was completed. In the argument section of its brief, Alpine states:

"Again, Alpine continued under the contract and nothing was done by the Board to declare a termination for breach or a dissolution; therefore, we take the position there was a waiver."

Building and construction contracts frequently provide that if the contractor fails to complete the work contracted for by a specified date he shall be liable to the contractee in liquidated damages, usually on a per diem basis. 13 Am.Jur.2d, Building and Construction Contracts, § 86, at 87. The provision for liquidated damages in the contract before us is of this kind. It stipulates that the contractor shall "pay to the Owner for each and every calendar day that he shall be in default in completing the work within the times stipulated, the sum of One Hundred Dollars ($100.00)." As such, the contract plainly contemplated continuation by the contractor in the event that Alpine could not complete work within the specified deadlines. There is, therefore, no merit to the contention that the Water Works Board waived liquidated damages by allowing Alpine to continue. To the contrary, liquidated damages, under the contract here, presupposed in fact such continuation as the very basis for their assessment.

II.

Alpine next argues that the Water Works Board was itself responsible for the delay caused by Alpine's difficulty in obtaining materials to meet contract specifications because the Board, and not Alpine, established these specifications:

" . . . the delay to complete the contract on time was the fault of the defendant. In plaintiff's Exhibit 1 which is the contract . . . we find the requirement for the anthracite coal to be clean and free from long, thin or scaly pieces, and shall have a hardness of 3.0 or greater on the MOH Scale . . . . The testimony . . . is to the effect that there was only one company in the United States or in the World that produced this particular media during the time of the contract . . . . If plaintiff had been allowed to proceed without this particular material or with some other material which would have been available, it would have finished its contract on the original completion date. The fault is not with the plaintiff but is with the defendant."

Alpine's argument here is, simply, that the Water Works Board caused Alpine to be late by requiring it to do that which Alpine undertook to do when it entered into the contract. The argument is wholly without merit.

III.

The third issue raised by Alpine is also related to Appellant's difficulty in obtaining the anthracite coal specified under the contract. Alpine contends that its late performance is entitled to be excused under the doctrine of impossibility of performance, but fails to cite any Alabama cases in support of its position. Under Alabama law, a promisor is held strictly to the literal terms of his promise. Poughkeepsie Savings Bank v. Highland Terrace Apartments, 352 So.2d 1108 (Ala.1977); City of Albertville, Alabama v. United States Fidelity & Guaranty Co., 272 F.2d 594 (5th Cir. 1960);...