D'Alfonso v. City of Portland
| Decision Date | 05 November 1958 |
| Parties | Charles D'ALFONSO et al. v. The CITY OF PORTLAND. |
| Court | Maine Supreme Court |
Israel Bernstein, Portland, for plaintiffs.
Robert W. Donovan, Barnett I. Shur, Portland, for defendant.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN and DUBORD, JJ.
This case is before us on exceptions of the defendant to the acceptance of the report of a referee's finding for the plaintiffs.
The plaintiffs brought action against the City of Portland claiming a balance remaining due for labor and materials furnished under a contract for the construction of a sewer in certain public streets.
The case was heard with the right of exceptions reserved in matters of law, pursuant to the provisions of Rule 42 of the Rules of Court.
Under date of July 11, 1956, the City of Portland sent out notices to contractors inviting bids for the construction of the sewer in question. Included in this notice were estimates of quantities for earth excavation, sewer pipe and other materials, including gravel, pertaining to the proposed sewer.
On July 16, 1956, the plaintiffs submitted a bid based on unit prices totaling $43,347.69. By a letter dated July 16, 1956, and signed by the Commissioner of Public Works for the City of Portland, plaintiffs were notified that their bid was accepted and on July 17, 1956, the contract which was attached to the original 'notice to contractors' was signed by the defendant and the plaintiffs.
It is admitted that the work was satisfactorily performed and the City of Portland paid the plaintiffs the amount of $35,947.86. Plaintiffs brought suit for $7,399.83, representing the difference between the amount paid to them and the total of the unit price bids.
The claim is based upon the contention that additional work and materials were furnished by the plaintiffs under four of the items listed in the estimate of quantities and included in the contract. For purposes of identification we will classify these items with the letters used in the estimate of quantities, the unit price bids and the items as listed in the contract, viz., A, R, S and U.
The first item (A) involves excavation which had been estimated at 3652 cubic yards. For this item, plaintiffs were paid for 2691.36 cubic yards and plaintiffs seek to recover for 960.64 cubic yards at $7.35 per cubic yard.
The second item (R) involves a claim on the part of the plaintiffs for 12 cubic yards of heavy run gravel at $1.90 per cubic yard.
The third item (S) involves a claim for 113.62 cubic yards of screened gravel at $4.10 per cubic yard.
The fourth item (U) involves 84 cubic yards of heavy gravel alleged to have been furnished by the plaintiffs at $1.90 per cubic yard.
These four items amount to $7,708.94.
In their writ, the plaintiffs had claimed as due them the amount of $7,399.83. The referee found for the plaintiffs on all four items and ruled that the defendant was indebted to the plaintiffs in the amount of $7,708.94. However, lacking an amendment relating to the amount claimed, the referee found for the plaintiffs in the amount of $7,399.83, plus interest, from the date of the writ in the amount of $362.59, or a total amount of $7,762.42.
In their writ, the plaintiffs declared upon a contract in the specific amount of $43,347.69 and to arrive at this figure they set forth in detail the estimates listed in the 'notice to contractors' and multiplied these estimates by their unit bids. Addition of the products of this multiplication gives us the alleged amount of the contract.
The defendant pleaded the general issue and by way of brief statement alleged in substance that plaintiffs had been paid in full and that by the acceptance of the final payment, had released the defendant from any further claim. In the course of the hearing, the contentions set up by the brief statement were waived.
Pursuant to provisions of Rule 21 of the Rules of Court, after plaintiff had filed a motion that the report of the referee be accepted, the defendant filed seventeen objections to the acceptance of the report. The objections were overruled and the report was accepted. To this ruling, the defendant took exceptions and these exceptions are now before this Court.
Objections 1 to 3, inclusive, allege in substance that there is no evidence to support the referee in his finding that the plaintiffs were entitled to be paid for additional excavation in the amount of 960.64 cubic yards of earth, under item A.
Objection 4, is based upon the contention that the referee erred in not making a finding that the plaintiffs had sheeted the trench at a point outside of the normal pay lines.
Objection 5, is a contention that the referee erred in not finding the distinction between 'bracing' of the trench and 'sheeting' of the trench as a determinant of the so-called pay lines.
Objection 6, alleges that there was no evidence that the Commissioner of Public Works had been given an opportunity to determine what work, if any, outside of the outside lines of the sewer structure, was necessary for sheeting and braces, pursuant to the provisions of Section 16, Article VII of the contract.
Objections 4 to 6, inclusive, relate to item A.
Objections 7 to 9, inclusive, relate to items R, S and U, and aver that there was no evidence to support the finding of the referee in relation to these items concerning the alleged furnishing of heavy bank-run gravel, screened gravel and heavy gravel.
Objection 10, contains a contention that there was no evidence to support the amount of damage found due.
Objection 11, alleges that because the plaintiff declared upon a lump sum contract and the contract was in fact based upon unit prices, that there was a fatal variance between the allegations and the proof.
Objections 12 to 15, inclusive, relate to the exclusion on the part of the referee of certain evidence offered by the defendant in sur-rebuttal.
Objections 16 and 17, are general allegations that there was no evidence to support the contentions of the plaintiffs and the findings of the referee.
The principal controversy revolves about item (A) under which the plaintiffs sought to recover for excavating 960.64 cubic yards.
During the course of the trial, much testimony was introduced about 'pay lines', 'sheeting', 'open sheeting', 'close sheeting', 'sheathing', 'open sheathing' and 'close sheathing.'
It appears that 'pay lines' represent the outside vertical lines of a sewer trench and that a sewer contractor is entitled to use as one of the dimensions for which he is entitled to be paid for excavating, the distance between these two lines.
Apparently 'sheeting' and 'sheathing' are synonymous terms. This is indicated by the fact that in Section 16, Article VII of the contract, the word 'sheeting' is used, and in the testimony, both the plaintiffs and representatives of the defendant used the word 'sheathing' as meaning the same thing as 'sheeting.'
'Close sheeting' or 'close sheathing' connotes the placing of boards or planks upright along the wall of the trench side by side, while 'open sheeting' means the placing of boards upright at some distance apart. 'Bracing' refers to the necessary supports for 'sheeting' or 'sheathing' and also means the use of the necessary planks when the trench is built wider and on a slant.
Section 16, Article VII of the contract provides how earth excavation is to be computed and part of the section reads as follows:
It is contended by the plaintiffs that the nature of the soil in the location in question was such as to require either sheathing or bracing, and this point is admitted by the defendant. The plaintiffs claimed, and their evidence supported the claim, that instead of digging a trench with vertical walls, they secured permission from the inspecting official or officials of the defendant to build a wider trench with sloping sides, thus eliminating vertical sheathing, either close or open. As a result of digging this wide trench, it was their contention that they excavated as much as 5,000 cubic yards of earth. However, they sought to recover, not for the entire amount of their excavation, but an amount representing the difference between the yardage for which they were paid and the cubic yardage contained in the original estimate. There is substantial evidence to support the finding of the referee that the plaintiffs did excavate this extra amount of earth.
Moreover, there is evidence to sustain the finding of the referee that permission was sought and obtained from the inspecting officials of the defendant to construct the sewer in the manner selected by the plaintiffs. It was also admitted by the inspecting engineer, and by the commissioner acting for the defendant, that when the estimate of the necessary amount of earth excavation, item (A), was made, it was contemplated that the nature of the soil was such as would require a widening of the trench and the extension of the so-called pay lines, and that the estimate of excavation was increased by approximately 1,000 cubic yards, to cover this anticipated widening. To put this in another way, the estimate under item (A) as contained in the notice to contractors was in the amount of 3652 cubic yards, but of this amount, approximately 1,000 cubic yards had been added for widened pay lines due to the necessity of close sheathing.
There is substantial evidence to support a finding that there was no objection on the part of the supervising officials that the ditch be cut on a wide angle and ordinary bracing used instead of sheathing, either open or close. It was also testified by officials representing the defendant...
To continue reading
Request your trial