Cure v. City of Jefferson, 50305

• Decision Date: 13 July 1964
• Docket Number: No. 1,No. 50305,50305,1
• Citation: 380 S.W.2d 305
• Parties: William D. CURE and Ernest F. Linhardt, d/b/a Cure-Linhardt Construction Company, Appellants, v. CITY OF JEFFERSON, Respondent, Schwarz & Van Hoefen, Architects, Arthur F. Schwarz and Hari Van Hoefen, Defendants
• Court: Missouri Supreme Court

Page 305

380 S.W.2d 305

William D. CURE and Ernest F. Linhardt, d/b/a Cure-Linhardt Construction Company, Appellants, v. CITY OF JEFFERSON, Respondent Schwarz & Van Hoefen, Architects, Arthur F. Schwarz and Hari Van Hoefen, Defendants.

No. 50305.

Supreme Court of Missouri, Division No. 1.

July 13, 1964.

Tweedie Fisher, Jefferson City, for appellants.

Thomas P. Rose, Bond & Dominique, P. Pierre Dominique, John O. Bond, Jefferson City, for respondent.

WELBORN, Commissioner.

This is an action by the general contractors under a contract with the City of Jefferson for the contruction of a municipally owned parking facility. The petition sought recovery from the City of $62,898.94 for the removal of rock in the excavation for the project. The architects for the facility were originally named party defendants. The trial court sustained a motion for summary judgment made by each defendant. The contractors have appealed from the judgment in favor of the City. No appeal was taken from the judgment in favor of the architects. We have jurisdiction of the appeal because of the amount in controversy.

The petition alleged that the plaintiffs, a partnership, entered into a contract, in June, 1961, with the defendant City for the construction of a parking garage for a base contract amount of $301,730.64, plus a unit price for general rock excavation and hand excavated pier rock in excess of 300 cubic feet at $2.00 per cubic foot; that the plaintiffs excavated 31,449.47 cubic feet of rock and, on October 17, 1961, submitted to the City their statement for payment in the amount of $62,989.94, which the City refused to pay. A copy of the contract between the plaintiffs and the City was incorporated by reference in the plaintiffs' petition.

The defendant City by its answer admitted the execution of the contract, but denied generally the allegations of plaintiffs' petition. The City also denied liability on the grounds of failure of plaintiffs to comply with provisions of the contract relating to the procedure to be followed before making a claim for extra compensation over and above the base bid and general contract sum.

After the deposition of plaintiff Cure had been taken, the City filed its motion for summary judgment, based upon the provisions of the contract as set out in the plaintiffs' petition and statements of Cure on his deposition. The motion relied specifically upon the following provisions of the contract documents: (1) Article 3 of the basic agreement (AIA Standard Form of Agreement Between Contractor and Owner for Construction of Buildings), which read as follows:

'ARTICLE 3. THE CONTRACT SUM. The Owner shall pay the Contractor for the performance of the Contract, subject to additions and deductions provided therein, in current funds as follows: Three Hundred One Thousand Seven Hundred Thirty and 64/100 Dollars ($301,730.64), which amount has been determined as set forth in summary of costs determining the General Contract sum and attached hereto as Exhibit A; said summary being in turn determined from the bid of the General Contractor, alternates and fee for management and administration of Mechanical and Electrical Contracts, based on bid dated May 18, 1961 (attached hereto), and the following bids of Sub-Contractors, alternates, and other requirements (also attached hereto), as follows:

'Natkin & Co.--Combined bid on Heating, Ventilating & Snow Melting and Plumbing & Drainage

'Stokes Electric Co., Inc.--Electric Work.'

(2) Section 5 of the Specifications relating to excavation, backfilling and filling (incorporated by reference as a part of the contract), which provided as follows:

'6. ITEMS OF WORK

'a) Remove existing earth, existing footings and all other items required to be removed.

'b) Do all necessary rough grading for floors, walks, drives, etc 'c) Include removal of 300 cubic feet of rock as a part of the base bid for excavation, backfilling and filling.

'2. (e) Material to be excavated is assumed to be earth and materials that can be removed by power shovel. If rock (as defined below) is encountered, the contract amount shall be adjusted in accordance with unit prices. ROCK shall be interpreted to mean stone, boulders, or concrete that cannot be removed by a power shovel 1/2 cu. yd. capacity, without the use of explosives or drills. No blasting shall be done without written consent of the Owner.'

(3) The following provision of the bid form submitted by plaintiffs, likewise incorporated by reference as part of the contract:

'UNIT PRICES

'1. Excavation. Backfilling. Filling & Grading--Section 5

'a) Unit price for excavation of:

'1. Common by machine $ 1.00 per cu. yd.

'2. Common by hand $10.00 per cu. yd.

'b) Unit Price for excavation of:

'1. Rock excavation of more than 300 cu. ft. $2,00 per cu. ft.

'2. Rock excavation of less than 300 cu. ft. $3.00 per cu. ft.'

(4) Articles 15 and 16 of the General Conditions of the Contract (AIA Standard Form), which read as follows:

'ARTICLE 15. CHANGES IN WORK. The owner, without invalidating the contract, may order extra work or make changes by altering, adding to or deducting from the work, the contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change.

'In giving instructions, the architect shall have authority to make minor changes in the work, not involving extra cost, and not inconsistent with the purposes of the building, but otherwise, except in an emergency endangering life or property, no extra work or change shall be made unless in pursuance of a written order from the owner signed or countersigned by the architect, or a written order from the architect stating that the owner has authorized the extra work or change, no claim for an addition to the contract sum shall be valid unless so ordered.

'The value of any such extra work or change shall be determined in one or more of the following ways:

'a) By estimate and acceptance in a lump sum.

'b) By unit prices named in the contract or subsequently agreed upon.

'c) By cost and percentage or by cost and a fixed fee.

'If none of the above methods is agreed upon, the contractor provided he receives an order as above, shall proceed with the work. In such case and also under case (c), he shall keep and present in such form as the architect may direct, a correct account of the cost, together with vouchers. In any case, the architect shall certify to the amount, including reasonable allowance for overhead and profit, due to the contractor. Pending final determination of value, payments on account of changes shall be made on the architect's certificate.

'Should conditions encountered below the surface of the ground be at variance with the conditions indicated by the drawings and specifications the contract sum shall be equitably adjusted upon claim by either party made within a reasonable time after the first observance of the conditions.

'ARTICLE 16. CLAIMS FOR EXTRA COST. If the Contractor claims that any instructions by drawings or otherwise involve extra cost under this contract, he shall give the architect written notice thereof within a reasonable time after the receipt of such instructions, and in any event before proceeding to execute the work, except in emergency endangering life or property, and the procedure shall then be as provided for changes in the work. No such claim shall be valid unless so made.'

(5) Paragraphs 10 and 11 of the Special Conditions of the Contract, which provide as follows:

'10. CHANGES IN THE WORK. Article 15 of the 'General Conditions' is hereby modified. The third paragraph shall read: 'The value of any such extra work or change shall be determined in one or the other of the following ways:

"a) By estimate and acceptance in lump sum.

"b) By unit prices named in the contract or subsequently agreed upon.

"c) By cost and percentage or by cost and a fixed fee.

"Reasonable time' in the fifth paragraph is hereby defined as five days.

'11. CLAIMS FOR EXTRA COST. Article 16 of the 'general Conditions' is hereby amended as follows: 'A reasonable time is hereby defined as five days.''

The motion further relied upon the statements of plaintiff Cure in his deposition that, at the time the rock was encountered in the excavation work, he determined that in excess of 300 cubic feet of rock would be required to be removed and that he intended to charge for the rock so removed, but that he made no request for a changeorder; that the City was not informed that the alleged rock had been removed until sometime after it had been excavated; that the first written notice to the defendant City was in the form of a partial billing in the amount of $30,000; that Cure was aware of the provisions of the specifications with respect to change-orders and additions to the contract sum.

Based upon the deposition of Cure, the motion alleged that the plaintiffs failed to comply with the conditions of the contract necessary for the compensation for the removal of the alleged rock in the following respects: '(a) Plaintiffs failed to notify the defendant City within five days after acquiring knowledge of the alleged rock which was in variance with the conditions indicated by the drawings and specifications as provided by Articles 15 and Sec.6 of the general conditions of the contract. (b) Plaintiffs failed to notify the defendant City in writing before removing said alleged rock as provided by Article 16 of the General conditions of the contract. (c) Plaintiffs failed to obtain written authority from the defendant City to remove said alleged rock as provided by Article 15 of the general conditions of the contract. (d) Plaintiffs failed to notify the defendant City that they intended to claim an additional amount, over and above the contract price for the removal of said rock as provided by Article 16 of the general...