FERRO CONCRETE CONSTRUCTION CO. v. Kentucky Utilities Co., 1314.

• Decision Date: 15 June 1962
• Docket Number: No. 1314.,1314.
• Citation: 205 F. Supp. 625
• Parties: The FERRO CONCRETE CONSTRUCTION COMPANY, an Ohio corporation, Plaintiff, v. KENTUCKY UTILITIES COMPANY, a Kentucky corporation, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

205 F. Supp. 625

The FERRO CONCRETE CONSTRUCTION COMPANY, an Ohio corporation, Plaintiff, v. KENTUCKY UTILITIES COMPANY, a Kentucky corporation, Defendant.

No. 1314.

United States District Court E. D. Kentucky, at Lexington.

June 15, 1962.

James G. Headley, Frost & Jacobs, Cincinnati, Ohio, B. L. Kessinger, Jr., Harbison, Kessinger, Lisle & Bush, Lexington, Ky., for plaintiff.

Robert M. Odear, Stoll, Keenon & Park, Lexington, Ky., for defendant.

HIRAM CHURCH FORD, Chief Judge.

On or about June 1st, 1955, plaintiff, The Ferro Concrete Construction Company, a corporation organized and existing under the laws of the State of Ohio, entered into a contract with defendant, Kentucky Utilities Company, a corporation organized and existing under the laws of the State of Kentucky, whereby plaintiff agreed to construct super-structure work on defendant's E. W. Brown Generating Station in Mercer County, Kentucky, for a final fixed contract price of $1,082,515.38. The contract was fully performed by the plaintiff.

By this action, plaintiff seeks to recover $29,175.49 for additional labor, salaries and other expenses alleged to have been incurred by plaintiff in the performance of the contract over and above those contemplated in the contract.

An agreed order was entered on December 19th, 1961, as follows:

"By agreement of the parties and the Court being advised, it is hereby ordered and adjudged as follows:

"1. This cause is now submitted to the court on the issue raised by the defendant's amended answer which was filed and served on the 16th day of August, 1961, to-wit, as to whether or not plaintiff had waived all claims against the defendant, including the one set forth in its complaint herein by accepting final payment of the contract price under the contract between the parties.

"2. This issue is submitted to the court upon the stipulation of the parties filed herewith and upon the deposition of the witness, Walter Maffey. * * *"

The stipulation of the parties referred to in the agreed order is accepted by the court as properly presenting the factual matters upon which the case is to be determined, and is as follows:

"This cause having been submitted to the court on the issue raised by defendant's amended answer filed herein on August 16, 1961, it is now agreed between the parties that the following stipulations may be considered by the court in its determination and adjudication of said issue:

"1. Under the contract between the parties herein, the contract price was fixed by the contract dated June 1, 1955, under paragraph 11 thereof, in the sum of One Million, Six Thousand Two Hundred ($1,006,200.00) Dollars.

"2. Under the terms of said contract, said contract price was subsequently increased by change orders to the sum of One Million Sixty Eight Thousand One Hundred Nineteen and 28/100 ($1,068,119.28) Dollars.

"3. Also subsequently said contract price was further changed by approved field orders to the sum of One Million Eighty Two Thousand Five Hundred Fifteen and 38/100 ($1,082,515.38) Dollars, which latter sum was and is the final contract price under the contract between the parties.

"4. On or about May 31, 1957, plaintiff submitted its invoice to defendant in the amount of Thirty Thousand Three Hundred Sixty One and 25/100 ($30,361.25) Dollars of which One Thousand One Hundred Eighty Five and 76/100 ($1,185.76) Dollars represented the balance due plaintiff from defendant on the contract price and Twenty Nine Thousand One Hundred Seventy Five and 49/100 ($29,175.49) Dollars represented, and was shown on said invoice as, `Additional costs caused by deviations from contract schedule detailed in our letter dated November 29, 1956 to Sargent & Lundy.'

"5. On or about June 30, 1957, plaintiff submitted its invoice to defendant in the amount of One Thousand One Hundred Eighty Five and 76/100 ($1,185.76) Dollars, as the balance due on the contract price, and expressly set forth on the face of said invoice the following words: `Note — This bill is not final.'

"6. Said sum of One Thousand One Hundred Eighty Five and 76/100 ($1,185.76) Dollars, described in paragraphs 4 and 5 as the balance due on the contract price, has been paid by defendant to plaintiff and said sum has been accepted by plaintiff.

"7. The only amount now in controversy between the parties is the amount prayed for in the complaint filed herein.

"8. The contract between the parties, and particularly the last sentence of paragraph 17 of the general conditions thereto, attached as Exhibit A, to

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