Brady v. Cent. Excavators, Inc.

• Decision Date: 07 January 1947
• Docket Number: No. 42.,42.
• Citation: 25 N.W.2d 630,316 Mich. 594
• Parties: BRADY v. CENTRAL EXCAVATORS, Inc.
• Court: Michigan Supreme Court

316 Mich. 594

25 N.W.2d 630

BRADY

v.CENTRAL EXCAVATORS, Inc.

No. 42.

Supreme Court of Michigan.

Jan. 7, 1947.

Appeal from Circuit Court, Washtenaw County; George W. sample, judge.

Action by E. P. Brady against the Central Excavators, Inc., to recover damages sustained by plaintiff from delay in performance of plaintiff's contract with defendant because of defendant's failure to furnish sufficient base grade to utilize 1000 cubic yards of gravel a day. From a judgment for plaintiff in the sum of $33,992.07, the defendant appeals.

Judgment affirmed on condition of remittitur by plaintiff of $7546.89.

Before the Entire Bench.

Kelly, Kelly & Kelly, of Detroit, for appellant.

Burke, Burke and Smith, of Ann Arbor, for appellee.

BUTZEL, Justice.

Plaintiff E. P.Brady bases his right to recovery in the instant suit on the claim that on the 3d of July, 1943 he entered into a parol agreement with defendant Central Excavators, Inc., parts of which agreement were subsequently reduced to writing evidenced by letters dated July 3 and July 16, 1943, and a purchase order of the latter date. The letters and purchase order are as follows:

EXHIBIT A.

Central Excavators

Ypsilanti, Michigan.

Gentlemen:

The following is confirmation on our verbal conversations street work on the Hunkin-Conkey job.

We have an Austin Western No. 99 patrol grader and one Austin Western next size smaller than the No. 99. The smaller grader could be moved onto the job July 6th and the No. 99 July 7th. It is also possible that if needed we could furnish one or two more graders.

The rental rates for these machines $640 per month for the No. 99, and $500 per month for the smaller machine plus all operating expenses. We can supply the operators.

Before we would care to furnish these machines we will want the purchase order covering the purchase of the gravel work, as we would not want to tie up these machines unless we were going to do the gravel work.

On the gravel work it is understood that the grades will be furnished to fine grading. There is to be no end movement of dirt. All grade stakes are to be furnished. We will do trenching for gravel, furnish, place and compact gravel and trim shoulders as far as possible with motor patrol grader.

6? Compacted Streets at 45¢ per sq. yd.

8? Compacted Streets at 58¢ per sq. yd.

We would strongly urge a top dressing of Calcium Chloride of 1 1/2¢ per sq. yd. If this can be sold we would furnish everything and apply for .04¢ per sq. yd. additional.

It is also understood that Central Excavators will carry my payroll from payroll information furnished by me, and deduct actual payroll plus payroll insurance from money due under sq. yd. purchase order contract.

I will guarantee that we can produce at least 1,000 cu. yds. per day, but we will just have to do the best we can so far as the trucks are concerned. Of course the more we can deliver the less our producing cost will be so you may be assured we will do the very best we can.

Thanking you for the opportunity of working with you on this work, I am

Yours truly,

(Signed) E. P. Brady.'

‘EXHIBIT B.

Central Excavators, Inc.

General Contractor

Willow Run Townsite

Ypsilanti, Michigan.

Purchase Order No. 764.

July 16, 1943

Project Mich-20046-54

Wayne, Michigan.

E. P. Brady

825 Dickinson St.,

Flint, Michigan.

All necessary work to complete approximately 60,000 sq. yd. of gravel drives 6? compacted thickness, and approximately 100,000 sq. yd. of gravel streets 8 ‘ compacted thickness, at the following unit prices:

Stabilized gravel drives, 6? compacted thickness at .45 per sq. yd.

Stabilized gravel streets, 8? compacted thickness at .58 per sq. yd.

Grade to be furnished to fine grading and all necessary grade stakes and engineering work will be furnished by others.

There is to be no end movement of dirt.

You are to do trenching for gravel, furnish, place and compact the gravel and trim the shoulders as far as possible with motor patrol graders, material to be in accordance with gradation requirements of F. P. H. A. specifications.

You are to furnish necessary motor patrols and rollers and any other equipment needed for this work, and in the event that we use any of the equipment for construction of sub-grade or ditches, you will be reimbursed on O. P. A. ceiling monthly rental basis, for the time such equipment is used.

We will take over your full payroll on this work, deducting same, plus taxes and insurance, from your periodic invoices.

Central Excavators, Inc.

By M. D. Obermeyer (Signed)'

‘EXHIBIT C.

Central Excavators, Inc.

General Contractors

Willow Run Townsite

Ypsilanti, Michigan

July 16, 1943.

Mr. E. P. Brady,

825 Dickinson St.,

Flint, Michigan.

Dear Mr. Brady:

We are attaching hereto, our purchase order number 764 covering the material in place for the required work in connection with the roads on the Wayne Housing Projects, identified as Mich. 20046 and 20054.

The purchase order is issued in conformance of the terms of your proposal of July 7, 1943, and in accordance with our previous understanding and agreement, we will place on our payroll all of your employees engaged in the construction of the road surface and pay any necessary expenses incurred at the site, deducting the payroll and expenses from your invoices when submitted.

Trusting that the above is as agreed and fully satisfactory, we remain,

Yours very truly,

Central Excavators, Inc.

By M. D. Obermeyer (Signed)

Project Manager.'

This litigation arose out of the construction contracts for the war housing project known as ‘Norwayne’ which is the designation given a particular part of the larger Willow Run Housing Project. The Federal Public Housing Authority contracted with the Hunkin-Conkey Construction Company of Cleveland, Ohio, which company is not a party to this action, to undertake the construction of the Norwayne project. The construction company, as prime contractor, entered into a subcontractwith the defendant corporation to do certain street construction work in connection with this project. Defendant company sublet a part of its own sub-contract to plaintiff. It is the latter sub-contract which gives rise to the dispute in this case.

Plaintiff claims that according to the terms of the verbal agreement, defendant promised; to furnish, or have furnished

‘1. Approximately 60,000 square yards of drives to find grading for 6? compacted thickness of gravel; and

‘2. Approximately 100,000 square yards of streets to fine grading for 8? compacted thickness of gravel, together with all necessary grade stakes and engineering work therefor, all to be so prepared that no hand labor of any kind or description would be required of any by the plaintiff; and

‘3. The said streets and drives in sufficient quantity in area per day so as to utilize plaintiff's promised output of 1000 cubic yards of gravel per day.’ to accomplish, or have accomplished, all end movement of dirt; to reimburse plaintiff for any of his equipment used for construction of sub-grade or ditches at a stipulated rate for the time during which such equipment was used; to take over plaintiff's full payroll for labor; and to pay plaintiff in the manner specified in Exhibit B. Plaintiff states that he, in turn, agreed to do the trenching for gravel; furnish, place and compact the gravel, and trim the shoulders of the streets, as far as possible, with motor patrol grader; produce, compact and process 1,000 cubic yards of gravel per day; and furnish the equipment and labor necessary to the completion of the work.

Plaintiff further claims that in reliance upon defendant's promise, he secured the facilities and hired the labor necessary to complete this work in forty days, the approximate period required at the rate of 1,000 cubic yards per day; that owing to defendant's failure to furnish sufficient base grade upon which to spread and compact 1,000 cubic yards of gravel per day, the soft and unstable condition of the sub-soil, the constant cutting up of finished work by utilities contractors laying pipe, sewers, et cetera, and the use of yet unfinished streets by vehicular traffic, plaintiff was put to great expense and suffered a considerable loss which he seeks to recover from defendants. Finally, plaintiff asserts that as the result of these untoward conditions he was required to do additional work not contemplated by the agreement, and that he did so under protest and without waiving his right to extra compensation.

In his bill of particulars plaintiff claimed the net amount owing him was $38,487.42. Prior to trial defendant, in accordance with the provisions of 3 Comp.Laws 1929, § 14269, filed an offer of judgment against itself in the amount of $3,953.15, which plaintiff declined to accept. The case was tried without a jury. The trial judge found that a verbal agreement had been entered into by the parties, only parts of which had been reduced to writing, and admitted parol evidence to prove its terms. He specifically found that defendant promised plaintiff that it would make available base grade for streets and driveways in such quantity as to utilize 1,000 cubic yards of gravel per day; that such base grade would have a reasonably firm and stable sub-soil; and that no handwork would be required of plaintiff in the performance of this undertaking.

The testimony at the trial established the fact that this was a ‘hurry-up job.’ The trial judge characterized the project during the period covered by the testimony as being ‘in a state of complete chaos.’ Before plaintiff had completed the laying and compacting of the gravel streets and driveways, they were being used by the trucks of the various other contractors and suppliers with the result that they were frequently torn up. The government inspector on this particular project testified that the required plaintiff to repair this damage; and the trial judge found that defendant had also directed plaintiff to repair such damage, without which the work was unacceptable to the...