Graham v. Com.
| Citation | 206 Va. 431,143 S.E.2d 831 |
| Parties | O. T. GRAHAM, Sr., et al. v. COMMONWEALTH of Virginia et al. |
| Decision Date | 10 September 1965 |
| Court | Supreme Court of Virginia |
James C. Roberts, Richmond (Tucker, Mays, Moore & Reed, Richmond, on brief), for plaintiffs in error.
Richard N. Harris, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendants in error.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
The issue on this appeal is on the proper construction of the contract between the litigating parties. There is no controversy about the facts.
By agreement dated August 1, 1958, Graham Brothers, the appellants, hereinafter referred to as plaintiffs, entered into a contract with the State Hospital Board of the Commonwealth, referred to herein as defendant, to construct a kitchen-cafeteria building for Central State Hospital, at Petersburg. The parties later disagreed about compensation to the plaintiffs for extra work. Plaintiffs instituted this action against defendant, and its comptroller, for $35,374.50 for the work. The case was heard by the court below without a jury and at the conclusion of the plaintiff's evidence the court sustained a motion to strike and entered judgment for the defendant as to $27,060 of the plaintiffs' claim, being for extra excavation in the basement and driveway of the building. No error is assigned to that ruling on this appeal.
Plaintiffs also asserted in their action a claim for $8,314.50 as due them under their contract for excavating 277 cubic yards of 'unstable material' from a roadway and for the same quantity excavated to replace it, both at $15 per cubic yard, plus .3 cubic yard of excavation for drain tile at the same rate.
By its final order the court dismissed this claim for $8,314.50 'without prejudice to the rights of the parties to determine the amount due to the plaintiffs from the defendants for such work under the terms and provisions of the Contract Documents upon which this action is based, * * *.' This ruling is the only matter involved in this appeal. It was based on the court's conclusion that the defendant had the right of selection as to the method of paying for this roadway excavation and fill under section 38(a)(2) of the General Conditions of the Contract, and that it had not yet made such selection.
The Contract consisted of an executed 'Form of Agreement,' a book of conditions and specifications and certain drawings, all prepared by the defendant's architect. Under der it the plaintiffs were required to construct a small section of roadway. In this work plaintiffs encountered an unstable material where the roadway was to be built. Plaintiffs notified the defendant and defendant issued to plaintiffs a 'Change Order,' which required plaintiffs to excavate and remove the 277 cubic yards of unstable material and to replace it with suitable material excavated from another place. The plaintiffs did the work but did not agree to the price of $3.50 per cubic yard set out in the Order. They claimed they were entitled to $15 per cubic yard under the terms of the contract.
The excavation work to be performed under the contract was from two areas. One was in connection with the building structure and appurtenances, placed under the heading 'Excavation' in the specifications, and comprising 'Stripping, Excavation, Drainage, Shoring and permanent sheet piling, Filling [and] Backfilling.' The other, under the heading of 'Stripping and Grading,' covered areas upon which roads were to be constructed and contained this specific provision:
'Unstable Materials:
(Italics added)
This provision of the specifications, particularly the concluding italicized sentence, is, say the plaintiffs, the nub of the present suit.
Plaintiffs' contention is that the extra work so performed by it in excavating and filling under the roadway constitutes 'additional excavation' to be paid for 'in accordance with unit prices agreed upon,' as promised in the above quoted provision, and that 'unit prices agreed upon' are the prices stated in the executed 'Form of Agreement' which provides:
'Unit Prices for Changes in Work as Follows:
Additional Work
Excavation
Add $15 per c.y.'
The trial court held and the defendant here contends that the situation is governed by section 38(a) of the General Conditions of the contract, copied in the margin. 1 In its letter-opinion the court stated that it would agree that the $15 per cubic yard provided for in the Agreement would fix the amount to be paid to plaintiffs if section 38(a)(2) did not contain the words 'the applicable unit price (if any) set forth in the contract,' and concluded:
As is apparent, section 38(a) provides that compensation for changes in the work shall be determined by one of three methods selected by the defendant (Owner). Subsection (3) is obviously not applicable because defendant did not order plaintiffs to proceed as therein provided. Moreover, the choice of methods of compensation provided in section 38(a) is not applicable to the excavation and filling for which this action was brought, for the reason that, as noted, the specifications specifically provide with respect to 'unstable materials' that any...
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In re Franklin Equipment Co.
...a rather strict approach when asked to construe the language used by parties in their agreements. For instance, in Graham v. Commonwealth, 206 Va. 431, 143 S.E.2d 831 (1965), the defendant argued that the phrase "price agreed upon" should have been interpreted by the trial court as "price t......
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