Boomer v. Abbett

• Decision Date: 24 November 1953
• Parties: BOOMER et al. v. ABBETT et al. Civ. 15408.
• Court: California Court of Appeals Court of Appeals

Page 476

263 P.2d 476

121 Cal.App.2d 449

BOOMER et al. v. ABBETT et al.

Civ. 15408.

District Court of Appeal, First District, Division 1, California.

Nov. 24, 1953.

Rehearing Denied Dec. 24, 1953.

Hearing Denied Jan. 20, 1954.

Erskine, Erskine & Tulley, San Francisco, Blewett, Blewett, Macey & Garretson, Stockton, for appellants.

Melvin, Faulkner, Sheehan & Wiseman, San Francisco, for respondents.

PETERS, Presiding Justice.

Defendant, George W. Abbett, entered into a contract with the U. S. Bureau of Reclamation to construct a transmission line in northern California. Plaintiffs H. H. Boomer, Jr. and S. C. Giles, a copartnership, entered into a subcontract with defendant to perform the excavation for and installation of the transmission line towers, and certain other work, called for by the prime contract. The Bureau, purporting to act under the terms of the prime contract, issued a change order that affected the method and amount of excavation on one mile out of the total of 25 miles of the transmission project. This change order asked for new bids on some of the excavation work in this limited area. The plaintiffs promptly and vigorously objected, and contended that the prime contract and their subcontract covered the additional work called for by the change order, and refused to bid on the excavation work called for by the change order. The work on this portion of the job was awarded to another. Later, another change order and a stop order were issued by the government stopping all work in the disputed area and deleting this work from the prime contract. Plaintiffs have been fully paid for all past work. They incurred substantial preparatory expenses and also suffered a major loss of claimed profits. This action was then brought against defendant for breach of contract, it being averred that defendant had wrongfully repudiated the subcontract, and hindered performance thereuner. Damages were asked for preparation expenses in the form of debts and judgment liabilities owed to plaintiffs' subcontractors for material and equipment costs, for a portion of the cost of doing business, and for loss of profits. The case was tried before a jury. At the conclusion of the evidence the trial court granted a directed verdict in favor of defendant. On plaintiffs' motion for a new trial it was ordered that such motion would be denied on condition defendant stipulated to pay to plaintiffs the sum of $3,152.71. A check in that amount was delivered by defendant to plaintiffs, subject to a stipulation that acceptance of the check would not adversely affect plaintiffs' right of appeal. The new trial was then denied, and this appeal followed.

This being an appeal from a judgment based on a directed verdict, the problem presented is whether there were any factual issues that should have been presented to the jury, that is, whether there was any evidence, or any reasonable inferences therefrom, that would have supported a judgment in favor of plaintiffs, at least in an amount in excess of that allowed on the motion for a new trial. If so, it was error to have taken the case from the jury. To determine this question some of the evidence in the lengthy reporter's transcript must be reviewed. Inasmuch as we have concluded that a reversal is required, it should be stated that in the summary of evidence that follows all conflicts have been resolved, as required by law, in favor of appellants. Therefore, when it is stated in that summary that there was evidence as to certain facts all that is meant is that there is evidence in the record, contradicted or uncontradicted, as to those facts. Where the evidence is conflicting, on the new trial, the jury may, of course, find that some of the facts contained in this statement of facts are not true.

The job involved was for the construction of a transmission line of about 25 miles in length in northern California, that required the construction of an estimated 225 steel towers. Abbett, the individual defendant, after competitive bidding, contracted, under date of October 24, 1947, with the Bureau of Reclamation to do the construction work on the project for $587,383. On December 18, 1947, the plaintiffs, a copartnership, entered into a subcontract with defendant, whereby they contracted to furnish all material and perform all work in reference to the excavation, concrete, reinforcing, and some welding upon the transmission towers. The plaintiffs contracted for this work, with one exception, at a level allowing the defendant a 10 per cent profit upon his bid. The contract estimated that 225 steel towers were to be constructed. Since the prime contract did not contain final specifications, plaintiffs could only estimate their total bid, which they did at $196,747.50. This contract, so far as excavation work was concerned, called for payment to plaintiffs at a price fixed at so much a unit of excavation in accordance with lines to be staked out by Bureau employees at each tower site.

Certain provisions of the prime contract and of the subcontract are relevant to the problems here involved. The prime contract is a regular form contract prepared by the government for use on such projects. It contained a complete schedule of the unit and lump sum payments to be made by the Bureau to the prime contractor. Article 3 provided that the contracting officer of the Bureau 'may at any time, by a written order, and without notice to the sureties, make changes in the drawings and/or specifications of this contract and within the general scope thereof.' Changes in amounts due as a result of such changes were to be settled by an 'equitable adjustment.' Changes involving estimated increases or decreases of more than $500 could not be ordered without the approval in writing of the head of the department. Claims for adjustment under this provision had to be asserted within 10 days after the change was ordered, provided that the contracting officer, with the approval of the head of the department could, if he determined the facts warranted it, consider any claim up to the date of final settlement of the contract. Disputes over such adjustments were to be settled in accordance with the 'disputes' clause of the contract contained in Article 15.

Article 4 provided that if either party should discover 'during the progress of the work subsurface and/or latent conditions at the site materially differing from those shown on the drawings * * *, or unknown conditions of an unusual nature differing materially from those ordinarily encountered' the contracting officer should be notified, and if he found the conditions different from those specified, the contract should, with department head approval 'be modified to provide for any increase or decrease of cost and/or difference in time resulting from such conditions.' This provision apparently contemplated that the contractor should perform the increased work called for, and that new bidders should not be solicited.

Article 15 is the 'Disputes' clause. It provided that except as otherwise provided 'all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department * * *, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.'

The specifications are attached to the prime contract and are made an integral part of it. Paragraph 13 of the specifications provided, among other things, that if the contractor 'considers any record or ruling of the contracting officer * * * to be unfair' he shall ask for written instructions, continue with the work in accordance with the ruling, and within 20 days after receiving such instructions he shall file a written protest with the contracting officer. Unless such protest is made, the ruling of the contracting officer 'shall be final and conclusive.' Paragraph 33 of the specifications classifies the various types of excavation work called for and covered by the contract. Subdivision (a) defines 'Rock excavation.' Subdivision (b) defines 'Common excavation' as 'Excavation of all material other than rock as defined above, including, but not restricted to earth, gravel, and such material as hard pan, cemented gravel, and soft or disintegrated rock; also all boulders or detached pieces of solid rock not exceeding one-half cubic yard in volume * * *.' Paragraph 34 of the specifications provided, in part, that 'All excavation for tower footings shall be made accurately to the locations, grades, and neat lines of excavation shown on the drawings, insofar as practicable * * *.' Subdivision (c) of this paragraph provided that payment for excavation would be made at applicable unit prices per cubic yard as set forth in the bids. Another portion of this subparagraph contained a 'changes' clause particularly applicable to excavation. It provided that 'During the progress of the work, it may be found necessary or desirable to vary the slopes or the dimensions of the excavations from those shown on the drawings, staked out, or otherwise established by the contracting officer, and the contractor shall be entitled to no additional allowances above the unit price per cubic yard bid in the schedule for excavation by reason of such changes: Provided, That if such changes are made after the excavation has been made to the slopes and dimensions shown, staked out, or otherwise established, and if it is determined by the contracting officer that unit costs will be increased or decreased as a result of such changes, the excavation to the changed slopes or dimensions will be ordered, in writing, as extra work by the contracting officer and payment will be made in accordance with article 5 of the contract and paragraph 9 of these specifications.' Paragraph 57 of the specifications is also pertinent. It provides, in...