Charles Burton Builders, Inc. v. L & S Const. Co.

• Decision Date: 10 December 1970
• Docket Number: No. 167,167
• Citation: 271 A.2d 534,260 Md. 66
• Parties: CHARLES BURTON BUILDERS, INC. et al. v. L & S CONSTRUCTION COMPANY, Inc. et al.
• Court: Maryland Court of Appeals

Page 66

260 Md. 66

271 A.2d 534

CHARLES BURTON BUILDERS, INC. et al. v. L & S CONSTRUCTION COMPANY, Inc. et al.

No. 167.

Court of Appeals of Maryland.

Dec. 10, 1970.

Abraham Chasanow, Greenbelt, for appellants.

William E. Brooke, Hyattsville (Gordon C. Murray, Baltimore, on the brief for Globe Indemnity Co.), for appellees.

Argued before HAMMOND, C. J., and BARNES, FINAN, SINGLEY and SMITH, JJ.

BARNES, Judge.

Charles Burton Builders, Inc., one of the appellants and a defendant below (Owner or Burton Builders), challenges before us a judgment for.$31,949.98 entered against it by Judge Parker, sitting as the Circuit Court for Prince George's County, without a jury, in favor of the appellee L & S Construction Company, Inc. (L & S or Contractor) and the action by that Court in dismissing the counterclaim for $35,350.00 of Burton Builders. The controversy arose out of the failure of Burton Builders, as Owner, under a written contract entered into between the Owner and the Contractor on April 19, 1963, for the construction of storm drainage and street paving in the Lakecrest subdivision of the City of Greenbelt, Maryland, to pay the balance allegedly due by the Owner to the Contractor for the work covered by the contract and certain extra work performed by the Contractor. The Owner's counterclaim is for alleged liquidated damages of $35.00 a day for a claimed delay by the Contractor of 1010 days. In the action below the Fireman's Fund, Inc., the remaining appellant, was joined as a party defendant as the Owner's bonding company. The Globe Indemnity Company, the bonding company for the Contractor, was joined as a party in a cross-claim filed by the Owner, Burton Builders. The Owner raises four contentions before us, i.e., (1) the trial court disregarded the written contract in arriving at its verdict; (2) the decision of the trial court was contrary to the evidence; (3) the judgment was excessive and improper; and, (4) the trial court erred in dismissing the Owner's counterclaim. We will consider these four contentions in the order mentioned.

The written contract of April 19, 1963, was prepared by Ben Dyer Associates, Inc., an engineering firm originally employed by the Owner and later employed by the City of Greenbelt to act as its engineer in connection with the work done under the contract. The total contract price was $47,862.70 and the work to be done under it was to construct storm drainage and street paving on Lakeside Drive Maplewood Court, Olivewood Court and Pinecrest Court in the Lakecrest Section of the City of Greenbelt. Nineteen items were listed with the unit, quantity, unit price and total price given for the separate items for the total contract price. The work to be done was divided by the $47,862.70 contract into three sections. Section 1 covered all of Maplewood Court and part of Lakeside Drive, which was to be constructed immediately. Section 2 covered all of the Olivewood Court and a part of Lakeside Drive. Section 3 covered all of Pinecrest Court and the remaining portion of Lakeside Drive. Sections 2 and 3 were to be constructed before September 30, 1963. In the Proposal Page of the contract, however, there was a statement that the contract would be completed within 60 days with the words written in ink, 'Quotation As Directed', directly below and with a further provision that the contract time would apply to Section 1 only, and that Sections 2 and 3 would be completed 'within a reasonable time when notified.' In addition to the three sections mentioned, the contract also provided that the Contractor would put in storm drains.

The contract consists of the Proposal of four single-spaced typewritten pages (with certain insertions in ink), four pages of 'Special Provisions' (which control if in conflict with the General Provisions) and 15 pages of General Provisions, containing 49 separate single-spaced mimeographed provisions of the general 'boiler plate' variety, adapted to the contract by the typewritten insertions. There are two single-spaced typewritten pages headed 'CONTRACT' which incorporated by reference the other portions of the contract, and this is duly signed by the respective parties on page 2 (marked page '21') of the contract. The Performance Bond, executed by the Globe Indemnity Company is also included in the contract as pages 22 and 23. Contract Drawing No. J-61098 is mentioned as part of the contract in the first paragraph of the Special Provisions.

The Special Provision, Sec. 3.03, under the heading 'JURISDICTION,' provides that 'Work to be performed under this contract is located within the City of Greenbelt, Maryland, and all work must be prosecuted and completed to the satisfaction of the City Manager.'

Sec. 3.17 provides:

'The amount of liquidated damages as specified under paragraph 13 of the General Provisions of this Contract will be $35.00 per day and will be paid to Charles Burton Builders Inc.'

In the General Provisions the following important provisions are set forth:

Sec. 1, 'DEFINITIONS,' subsection (c) provides that: 'ENGINEER shall mean 'City Manager-Inspection

Ben Dyer Associates, Inc.-Engineering' or 'their' duly authorized agents.' The portions of this section in italics were inserted in typewriting on the mimeographed copy.

Subsection (e) provides that:

'Whenever, in the specifications or upon the drawings the words DIRECTED, REQUIRED, PERMITTED, ORDERED, DESIGNATED, PRESCRIBED, or words of like import are used, it shall be understood that the direction, requirement, permission, order, designation, or prescription of the Engineer is intended; and similarly the words APPROVED, ACCEPTABLE, SATISFACTORY or words of like import, shall mean approved by, or acceptable or satisfactory to the Engineer, unless otherwise expressly stated.'

Sec. 5, 'WORK TO BE DONE AND MATERIALS TO BE FURNISHED,' provides that the Contractor shall do the work and furnish the necessary materials necessary or proper to do the work in the manner called for by the specifications and 'within the contract time.' The Contractor shall complete the work and any extra work 'to the satisfaction of the Owners and the Engineer and in accordance with the specifications and drawings.'

Sec. 8, 'SUPERVISION AND DIRECTION OF WORK,' provides that the 'work shall be under the general supervision of the Engineer.'

Sec. 9, 'DECISIONS AND EXPLANATIONS BY ENGINEER,' provides:

'(a) The Engineer shall make all necessary explanations as to the meaning and intent of the specifications and drawings, and shall give all orders and directions, either contemplated therein or thereby or in every case in which a difficult or unforeseen condition arises during the prosecution of the work. Should there be any discrepancies in or between, or should any misunderstanding arise as to the import of anything contained in the drawings and specifications, the decision of the Engineer shall be final and binding. Any errors or omissions on the drawings or in the specifications may be corrected by the Engineer when such corrections are necessary for the proper fulfillment of their intent as construed by him.

'(b) The Engineer shall in all cases determine the amount, quality and acceptability of the work to be paid for under the contract, and shall decide all questions in relation to said work. His decision and estimate shall be final and conclusive, and in case any question shall arise between the parties touching the contract, such decision and estimate shall be a condition precedent to the right of the Contractor to receive payment under that part of the contract which is in dispute.

'(c) Decisions and interpretations will be rendered by the Engineer as promptly as possible but should delay occur, for any reason, the Contractor shall have thereby no claim for damage or extra compensation.'

Sec. 11, 'LINES, GRADES, ELEVATIONS, ETC.,' provides that the 'Engineer will give all necessary lines, grades and elevations for the guidance of the Contractor. * * *' This section also provides that any work done 'without lines, levels and instructions having been given by the Engineer, will not be estimated or paid for except when such work is authorized by the Engineer.'

Sec. 12, 'TIME OF BEGINNING AND COMPLETION,' provides that the Contractor shall begin the work 'within 10 calender days after the service of written notice from the Engineer so to do and shall diligently prosecute the same to that it shall be fully completed within the number of days stated in the proposal, after service of written notice from the Engineer to proceed with the work.'

Sec. 13, 'DEFAULT IN COMPLETION,' provides:

'(a) The Engineer shall determine the number of calender days that the Contractor is in default in completing the contract and shall certify the same to the Owners in writing. For each calendar day so certified, the Contractor shall pay the Owners a sum specified in the Special Provisions, which sum is hereby agreed upon, not as a penalty, but as liquidated damages which the Owners will suffer by reason of such default; provided, however, that the Owners may, as hereinafter provided, extend the time for completion of the work beyond the contract time. The Owners shall be fully authorized and empowered to deduct and retain the amount of any damages, determined as hereinbefore stipulated, for each day that the Contractor shall be in default in completing the work after the time fixed in the contract, or after any later date to which the time for completion may have been extended by the owners, from any moneys due or to become due the Contractor under the contract, at any time after such damages are so incurred. The permitting of the Contractor to finish the work or any part of it after time fixed for its completion, or after the date to which the time for completion may have been extended, shall in no wise operate as a waiver on the part of the Owners of any of its rights under the contract.'

Sec. 14, 'EXTENSION OF...