Berke Moore Co. v. Phoenix Bridge Co.

• Decision Date: 01 July 1953
• Citation: 98 A.2d 150,98 N.H. 261
• Parties: BERKE MOORE CO., Inc. v. PHOENIX BRIDGE CO.
• Court: New Hampshire Supreme Court

Page 150

98 A.2d 150

98 N.H. 261

BERKE MOORE CO., Inc. v. PHOENIX BRIDGE CO.

Supreme Court of New Hampshire.

July 1, 1953.

Rehearing Denied Aug. 10, 1953.

Upton, Sanders & Upton, Concord (Robert W. Upton, Concord, orally), for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell, Manchester (Winthrop Wadleigh, Manchester, orally), for defendant.

DUNCAN, Justice.

The Trial Court found and ruled: 'The contract between the parties consists of the subcontract and the plans and specifications referred to therein.' The dispute between the parties arises out of the following provision of the specifications, which appears in article 4.06.15 entitled 'Measurement': 'The quantity of concrete to be paid for under Item 15a Concrete in Bridge Deck shall be the number of square yards of concrete surface included in the bridge deck, including the sidewalk. The concrete curbs shall be considered incidental to this item.' The rights of the parties turn upon the interpretation of the quoted provisions.

'Item 15a' was an item in the proposal invited by the State in seeking bids on a unit basis. As to this item, the Phoenix Bridge Company was entitled by its contract to receive $12.60 per square yard. The bid of the plaintiff as a subcontractor was $12 per square yard. The printed proposal upon which bids were made stated as the approximate quantity for this item: '3,933 S. Y.' It further stated, 'It is understood that the estimate of quantities of work to be done and materials to be furnished, as given in this proposal, is approximate and is to be used only for comparing bids. The Department assumes no responsibility whatsoever, that the quantities given will prevail in the actual construction. Payment will be made only for actual quantities of work performed or materials furnished in accordance with the Contract. * * * In case of any discrepancy between a unit price and the corresponding amount, the unit price shall be considered binding.'

The provision of the specification for payment for the 'number of square yards of concrete surface in the bridge deck' was a part of the contract between the State and Phoenix Bridge Company and became a part of the subcontract with the plaintiff by reason of its undertaking to furnish and install the work described therein as Item 15a 'Concrete in Bridge Deck,' and the further provision that 'the subcontractor shall be bound by and conform to the general specifications in all respects wherein they apply to the work embraced in this agreement.' The subcontract further provided that the plaintiff should be paid upon the following basis: 'Item 15a--Concrete in Bridge Deck: TWELVE DOLLARS ($12.00) per square yard for the quantity of material approved by the State Highway Commission.'

The bridge deck which the plaintiff undertook to construct is approximately 1,200 feet long, divided into two sections by the draw bridge section of the bridge. The deck is supported by an open frame work of steel girders, floor beams and stringers which rest upon piers rising from the river bed. Each section of the deck is a rectangular slab of concrete approximately 565 feet long, 33 feet wide and 7 inches thick. The curbs referred to in the specification run lengthwise of the deck and are approximately 9 inches high. The westerly curb is located at the extreme edge of the deck, is approximately 17 inches wide at its base and 16 inches at its top. The easterly curb separates the traveled way from the sidewalk and is approximately 12 inches wide at the base and 11 inches at the top.

The plaintiff claims to be entitled to payment for the number of square yards included in the outer surfaces of the deck, including top, bottom and sides, and in the surfaces of the curbs. The defendant denies that it is entitled to payment for more than the number of square yards contained in the upper surface of the deck itself.

The conclusions of the Trial Court with respect to the conflicting claims of the parties were as follows: 'Upon all the evidence and in the light of all the attendant circumstances, the Court finds that on June 12, 1947, when the parties used and adopted the language in question, they intended that the concrete surface of the bridge deck for which the Plaintiff was to be paid at $12.00 per square yard was to consist of the total top surface of the deck, including the roadway, sidewalk and space occupied by the curbs. The three exposed surfaces of the curbs were not to be included in computing the total surface since the contract specifically states that the curbs shall be 'considered incidental' in the matter of measurement. The number of square yards included in this surface is 4,184 and for this number of yards the Plaintiff has either been paid or the money has been deposited in Court.'

The plaintiff excepted to this finding, taking the position that the language of the integrated agreement of the parties is plain and unequivocal and entitles the plaintiff to payment for the total number of square yards in the entire outer surface of the bridge deck including curbs. It further contends that other findings upon which the verdict rests are erroneous because based upon extraneous evidence relating to the plaintiff's understanding of the written agreement, and because inconsistent with the intention of the contracting parties as disclosed by the written agreement. The defendant contends that the verdict of the Trial Court should be sustained, and further that, contrary to the Court's ruling, the plaintiff is bound by a determination by the State Highway Commissioner that the quantity of concrete to be paid for under Item 15a should be 4,184 square yards.

The plaintiff duly excepted to a finding and ruling that the words 'concrete surface included in the bridge deck' are 'not so plain and clear that reasonable men could not differ as to their meaning,' upon the ground among others that 'read in their context and in the light of attendant circumstances [they] are not ambiguous.' We are of the opinion that the finding and ruling was warranted. Certainly apart from their context, and in at least one of the senses of normal usage, the words might be taken to refer only to the upper surface of the bridge deck. 'Surface: * * * the uppermost layer * * * the upper boundary or top of ground or * * * water.' Oxford English Dictionary (1919). In this sense we speak of the surface of the ground, or of a lake, or of a highway. It is true that when the words are considered in their context and against the plans and specifications, a strong argument can be made for the proposition that by 'surface included in the bridge deck,' the entire outer surface was meant, or at least something more than the upper surface alone. See Selectmen of Natick v. Boston & Albany R. Co., 210 Mass. 229, 96 N.E. 347. The specifications indicate that the several surfaces of the deck, as well as its content, were of concern to the State. They provide with great particularity requirements for the construction of forms for 'surface which will be visible,' for the curing of the 'underside' and the 'upper and side surfaces,' for the cleaning of 'surfaces' and the protection of 'surfaces' against cold. Without violence to the language used, it could reasonably be concluded that all of these surfaces were deemed a part of the 'surface included in' the deck.

On the other hand, it was likewise readily apparent from the plans and specifications that the upper surface of the bridge approximated 4,000 square yards, or 4,600 square yards according to the plaintiff's president. The plaintiff's bid, as well as the defendant's, was made upon the estimated quantity of 3,933 square yards. While the proposal form furnished by the defendant, part of which was adopted by the plaintiff in its bid on Item 15a, did state that the estimate of 3,933 square yards was to be 'used only for comparing bids,' and that actual quantities should control for payment, it also stated that the 'estimate of quantities * * * is approximate.' This provision might reasonably be taken to indicate that the bid requested and made, being upon a quantity which actually approximated the area of the top surface alone, was predicated upon payment for that surface only. In this view, a bid made upon an interpretation requiring payment for 8,100 square yards would not reasonably be considered a bid upon a quantity approximating 3,933 square yards.

The Trial Court's conclusion that the 'words in question are not so plain and clear that reasonable men could not differ as to their meaning,' when applied to the subject matter of the contract or the 'state of the property', Weed v. Woods, 71 N.H. 581, 583, 53 A. 1024, 1026, was warranted. '[T]he 'ambiguity' seldom appears until the attempt is made to apply the words to existing facts by the use of parol evidence.' 3 Corbin on Contracts, 81, 82.

In this situation, the question presented was what the parties meant by the words which they employed. What intention did they express? Kendall v. Green, 67 N.H. 557, 562, 42 A. 178, and cases cited. The plaintiff's proposal contained in its letter of May 7, 1947, to the defendant's predecessor, was to 'construct the work called for in the items detailed below * * * according to the plans and specifications of the New Hampshire State Highway Department for the following schedule of prices: * * * Item 15a Concrete in Bridge Deck 3933 s. y. 12.00 $47,196.00.' The form of the bid indicates a close following of the form of proposal accompanying the specifications, and the testimony of the plaintiff's president showed his familiarity with the quantity estimate in the proposal form.

It might be argued that since the form prepared for the State was proffered by the defendant's predecessor in seeking bids from subcontractors, smbiguities should be resolved against it as the one responsible for the language used. Cf. Pfotzer v. United States, 77 F.Supp. 390, 394, 111 Ct. Cl. 184. It is unnecessary...