Excavators and Erectors, Inc. v. Bullard Engineers, Inc.
| Decision Date | 27 December 1973 |
| Docket Number | No. 72-3255.,72-3255. |
| Citation | 489 F.2d 318 |
| Parties | EXCAVATORS AND ERECTORS, INC., Plaintiff-Appellee, v. BULLARD ENGINEERS, INC., Defendant-Third Party Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK, Third Party Defendant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
G. M. Harrison, Jr., Dothan, Ala., for Bullard & U. S. Fid. & Guar. Co.
Floyd M. Buford, Macon, Ga., for appellant.
John B. Harris, Jr., Joseph H. Davis, Macon, Ga., for Excavators & Erectors & Commercial Union Ins. Co.
Before BELL, INGRAHAM and RONEY, Circuit Judges.
This is a Georgia diversity case concerning a dispute between a general contractor, Bullard Engineers, Inc., and a subcontractor, Excavators and Erectors, Inc. On March 16, 1969, Bullard contracted with the Georgia Educational Authority for the construction of the Student Services Building, Middle Georgia College, Macon, Georgia. Bullard subsequently entered into a written subcontract with Excavators and work was begun under this contract in late April of 1969. During the early stages of the excavation work, Excavators discovered a subsurface condition consisting of soil unsuitable for compaction. The existence of this problem was unknown when both Bullard's general construction contract and Excavators' subcontract were consummated. Bullard subsequently was authorized by the Georgia Educational Authority to remove this soil and to replace it with suitable, compactible soil. Bullard verbally informed Excavators' supervisor, James H. Taylor, of this authorization, requested that the soil be replaced and discussed with him the procedures by which records would be kept of costs in order to compensate Excavators for this additional work. It is uncontested that Excavators completed this additional task.
While work proceeded during the summer of 1969, dissension arose between Excavators and Bullard. Bullard believed that Excavators was in default on the subcontract because of its failure to furnish adequate labor and machinery; consequently work was unjustifiably behind schedule. Early in November, this dissension resulted in Bullard's demand that Excavators leave the construction site. Excavators left the site under protest.
Excavators brought this suit, alleging that Bullard had breached its contract by ordering Excavators' men and machinery off the premises. Bullard denied liability, asserted a counterclaim for breach of the subcontract, and obtained leave to join Commercial Union Insurance Company of New York, surety on the bond posted by Excavators, as third party defendant. Excavators likewise obtained leave to add United States Fidelity and Guaranty Company, the surety on Bullard's bond, as a defendant. The case was tried to a jury, and in answer to special interrogatories the jury rendered a verdict for Excavators in the amount of $45,237.70 in addition to attorney's fees. Judgment was entered on the verdict against Bullard and United States Fidelity and Guaranty Company for $49,737.70. We affirm.
On appeal defendants Bullard and United States Fidelity and Guaranty Company raise several points of error, two of which are worthy of mention. First, defendants contend that the trial court erred in holding that the extra work of removing and replacing the unsuitable soil was done pursuant to a separate oral contract. Because the district court held that this was a separate oral agreement, evidence that Bullard had not been paid for this work was excluded as irrelevant and immaterial to the contractual relationship between Bullard and Excavators. Defendants urge, as they did in the district court, that the agreement to replace the unsuitable soil was made pursuant to the provisions of the subcontract. As the subcontract contained the provision that "the...
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...on the motion. Moreover, an argument first raised in a postjudgment motion "is simply too late." Excavators & Erectors, Inc. v. Bullard Engineers, Inc., 489 F.2d 318, 320 (5th Cir. 1973). Accord Hanson v. Denckla, 357 U.S. 235, 243-44, 78 S.Ct. 1228, 1234, 2 L.Ed.2d 1283 (1958) (argument ra......
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