Flora Const. Co. v. Bridger Val. Elec. Ass'n, Inc., 2916

• Decision Date: 11 October 1960
• Docket Number: No. 2916,2916
• Parties: FLORA CONSTRUCTION COMPANY, a corporation, Appellant (Plaintiff below), v. BRIDGER VALLEY ELECTRIC ASSOCIATION, INC., a corporation, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 884

355 P.2d 884

FLORA CONSTRUCTION COMPANY, a corporation, Appellant (Plaintiff below), v. BRIDGER VALLEY ELECTRIC ASSOCIATION, INC., a corporation, Appellee (Defendant below).

No. 2916.

Supreme Court of Wyoming.

Oct. 11, 1960.

A. G. McClintock, Cheyenne, for appellant.

Vincent A. Vehar, Evanston, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This is an action in which the plaintiff and appellant, Flora Construction Company, seeks to recover an amount of money from the Bridger Valley Electric Association, Inc., defendant and appellee herein. Plaintiff alleged in its petition that pursuant to a contract between the parties hereto plaintiff agreed to erect service assembly units necessary to the project which said units would include a certain number of units of neoprene triplex at a cost of $158.40 per unit; and that by an amendment an additional partial unit was added to the contract at $215 per unit. That part of the contract provides: 'Service Assembly Unit. Consists of 1,000 feet of single conductor measured horizontally between conductor supports.' Plaintiff further alleged:

'In the course of the construction of said Service Assembly Units plaintiff claims to have installed 17,937 feet, or 17.937 units, of the type of conductor known by the trade name of 'Carp' and 1,329 feet, or 1.329 units, of the type of conductor known by the trade name of 'Shad.' On the basis of these computations, plaintiff claimed compensation at the rate of $158.40 per unit on the 'Carp' and at the rate of $215.00 per unit upon the 'Shad', or total compensation for the two items of $3,126.96. Defendant, however, claimed that the amounts of such conductor installed amounted to only 5,979 feet, or 5.979 units of the 'Carp' and 443 feet, or .443 units of the 'Shad', and applying the agreed prices per unit thereto, claimed that plaintiff was entitled to payment of only $1,042.32 for these two items and in the payment hereinabove mentioned refused to pay more that the latter amount. * * *'

Plaintiff accordingly prayed judgment for the sum of $2,084.64 with interest. Defendant and appellee answered, denying that it owed the plaintiff anything and particularly pleading as follows:

'* * * generally and specially denies that 'Neoprene Triplex' conductor constitutes or is anything more than a single conductor, composed of three parts united, not single or independent of each other, as attempted to be alleged [by the plaintiff] in said paragraph No. 4; alleges that said 'Neoprene Triplex' conductor is a single conductor consisting of three interdependent conductors combined and twisted into one, as a three strand rope is made; and genrally and specially denies all other material allegations, matters and things in said paragraph No. 4, not herein expressly and specifically in direct terms otherwise admitted, denied or qualified;'

Defendant further denied that plaintiff installed 17,937 feet or any other amount in excess of 5,979 feet of carp and 443 feet of shad.

In reply plaintiff denied that neoprene triplex conductor constitutes or is anything more that a single conductor, composed of three parts united, not single or independent of each other and denied that neoprene triplex is a single conductor consisting of three interdependent conductors combined and twisted into one, as a three strand rope is made.

The case was tried to the court without a jury and judgment was entered in favor of the defendant. Plaintiff has appealed to this court. The parties will be mentioned herein as in the court below or as appellant and appellee.

It appears herein that the original contract provided that the plaintiff should furnish 8.620 units of No. 4 Neoprene Triplex. The amount of $16.50 was allocated to each unit for labor and $141.90 for material, making a total of $158.40 per unit. The total amount to be paid for all the units was $1,365.41, namely 8.620 times $158.40. The contract was amended on June 22, 1955. Instead of referring to No. 4 Neoprene Triplex it substituted the code name of 'carp'. The units were reduced from 8.620 to 5.671 units; the allocation for labor and material remained the same. Only the total price was changed, namely to the sum of $898.29 for all the units, being 5.671 times $158.40. The contract was again amended on December 1, 1955, but the only change in connection with carp was the increase from 5.671 units to 5.979 units; labor and materials were allocated the same as previously. Only the total was changed in accordance with the increase in the units, namely to the sum of $947.07 for all the units, being 5.979 times $158.40. The amendment also called for 443 feet of socalled shad, a code name...