Carpenter v. Seaboard Engineering Co.

• Decision Date: 27 July 1962
• Citation: Carpenter v. Seaboard Engineering Co., 183 A.2d 216, 158 Me. 277 (Me. 1962)
• Parties: Frank S. CARPENTER v. SEABOARD ENGINEERING CO., Inc., and U. S. Fidelity and Guaranty Co.
• Court: Maine Supreme Court

Page 216

183 A.2d 216

158 Me. 277

Frank S. CARPENTER v. SEABOARD ENGINEERING CO., Inc., and U. S. Fidelity and Guaranty Co.

Supreme Judicial Court of Maine.

July 27, 1962.

Stanley L. Bird and Philip Bird, Waterville, for plaintiff.

Shur, Sawyer & Beyer, Portland, for defendants.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, and SIDDALL, JJ.

SULLIVAN, Justice.

Seaboard Engineering Co., Inc., covenanted in writing with the State of Maine to construct a section of public highway and in guarantee thereof gave the State its bond with United States Fidelity and Guaranty Company as surety.

Seaboard Co. subcontracted with Aaron Construction Co. which on its part rented road making equipment from Lee Brothers and utilized such contrivances in the highway building. Lee Brothers remain unpaid by Aaron Co. for the rentals and the State for Lee Brothers has in this action sued Seaboard Co. and the Guaranty Company to exact payment.

There was a jury trial and evidence which, if believed, established that Lee Brothers for several days let to Aaron Co. one 605 Koehring Shovel to move earth and rock upon the road project, 2 Letourneau-Westinghouse, Tournapull, rear dump units for moving heavy earth and an International bulldozer, model TD24 and that Aaron Co. put the equipment to use on the road project. There were charges for wrecker service, repairs, moving and grease.

The presiding Justice at the close of evidence instructed the jury as follows:

'While the contract, the bond and certain papers will go with you to the jury room I would say to you that under the wording of the bond in this case we are limited considerably in our application of the bond to the facts. While the bond, you will find, in general terms guarantees that Seaboard Engineering Company will pay for all labor, materials and so forth, connected with this job, I will have to say to you that we are here governed by the following interpretation of that contract, namely, that Seaboard and the surety company, the bondsmen, will be responsible to Lee Brothers only for such items as Lee Brothers supply, which items were substantially consumed * * * substantially consumed * * * in this operation.

'It is easy to understand that in the building of a road, cement, gravel, fill for shoulders, crushed rock, and so forth, do become incorporated, built into the road, substantially consumed or entirely consumed in the construction, but when we consider the equipment we are dealing with such as bulldozers, power shovels, and so forth, the question of whether they are substantially consumed is a horse of another color, so to speak.

'So for our purposes the only item in the bill which is presented by Lee Brothers for our consideration which, as the record stands, can fall within the category of being substantially consumed is the 105 pounds of grease.'

Plaintiff's counsel at the end of the Court's instructions excepted in these words:

'I object to the Charge of the Court when he stated that Seaboard and the surety company were only liable for such items as were substantially consumed on the project. I further object to the statement that the only item on the bill, which as the record now stands, is the question of the 105 pounds of grease * * *'.

The jury returned a verdict for the plaintiff in the amount of $19.84, for the grease and special findings as follows:

'Special Findings

'1. What was the fair rental value per month of a #605 Koehring Shovel during the period September 8-October 23, 1959?

'Twenty Six Hundred Per Month

'2. What was the fair rental value of a Letourneau-Westinghouse rear dump vehicle, otherwise known as an earth mover, otherwise known as a Tournapull, per month for the same period?

'Fifteen Hundred & Seventy Two Per Month

'3. What was the fair rental value per hour of a TD 24 (bulldozer with operator) during the period September 14 to October 23, 1959?

'Eighteen Dollars Per Hr.'

Plaintiff thereupon appealed and states the issue here to be:

'Are mechanical labor or equipment charges recoverable by the Treasurer of the State of Maine for the use of equipment owner against a prime contractor and its bonding company under the terms of a State Highway contract and its accompanying bond?'

In the order of logic as well as in the contemplation of law the expressed intention of the State of Maine and of the defendants is the prime object of our consideration and judicial concern, in the interpretation of the highway contract and bond.

'* * * Actual intention, as expressed in the writing, is the chief thing to be looked to and ascertained. * * *' Salmon Lake Seed Co. v. Frontier Trust Co., 130 Me. 69, 71, 153 A. 671, 672.

The sanctioning statute basic to the relations of the parties in this action reads in pertinent respect as follows:

'The commission (State Highway Commission) shall have full power in the letting of all contracts for the construction of all state highways * * *. The commission shall make all * * * specifications and contracts for all proposed work * * *. The commission shall have full power in all matters relating to the furnishing of bonds by the successful bidders for the completion of their work and fulfilling of their contracts, * * *.' R.S. c. 23, § 40 (ante 1961 amendment)

The Standard Specifications of the State Highway Commission, revision of January, 1956, applicable to this case recite the glossary which follows, with most italics added:

'Definition of Terms

'101-9, Contract. The agreement covering the performance of the work and the furnishing of materials for the proposed construction.

'It should be understood by all concerned that the * * * 'Standard Specifications' * * * are a part of the contract and are to be considered as one instrument.

'101-17, Equipment. All machinery, together with the necessary supplies for upkeep and maintenance, and also all tools and apparatus necessary for the proper construction and acceptable completion of the work.

'101-52, Work. It shall be understood to mean the furnishing of all labor, materials, equipment and other incidentals necessary or convenient to the successful completion of the Project and the carrying out of all duties and obligations imposed by the Contract.

'103-4, Requirements of Contract Bond. * * * This bond shall guarantee due execution and faithful performance and completion of the work to be done under the contract and the payment in full of all bills and accounts for material and labor used in the work, and for all other things contracted for or used in connection with the contract; * * *.'

'106-13, Responsibility for Damage Claims. * * * The Contractor shall promptly pay all bills for labor, materials,...