Gruschus v. C. R. Davis Contracting Co.
| Decision Date | 07 September 1965 |
| Docket Number | No. 7642,7642 |
| Citation | 75 N.M. 649,409 P.2d 500,1965 NMSC 99 |
| Parties | , 2 UCC Rep.Serv. 1080 Jeanine Adams GRUSCHUS, Executrix of the Estate of Jack Adams, Deceased, Plaintiff-Appellant and Cross-Appellee, v. C. R. DAVIS CONTRACTING COMPANY, Inc., a New Mexico Corporation, Defendant-Appellee and Cross-Appellant. |
| Court | New Mexico Supreme Court |
Stephenson & Olmsted, Santa Fe, for appellant and cross-appellee.
Rodey, Dickason, Sloan, Akin & Robb, Robert M. St. John, Albuquerque, for appellee and cross-appellant.
Jack Adams Construction Company, Inc., (hereinafter termed Adams), prime contractor for the construction for some ten miles of four-lane concrete highway, sued its subcontractor, C. R. Davis Contracting Company, Inc., (hereinafter termed Davis), for damages occasioned by Davis' failure to complete its subcontract within the time required by the contract. Davis counterclaimed for damages resulting from Adams' failure to prepare the cement treated base within the tolerances required by the highway department specifications, and for a balance claimed to be due under the subcontract. The court found that Adams was damaged in the sum of $28,000 by Davis' failure to complete the work within the time specified, and that Davis was damaged to the extent of $23,500 by Adams' failure to construct the base within allowable tolerances. Certain other charges and credits were allowed and judgment was rendered against Adams for a balance found to be due Davis. Adams has appealed and Davis has cross-appealed.
The allowance of the 'backcharge' against Adams because of extra work performed by Davis in conforming the cement treated base to specification tolerances is attacked on the grounds that (1) there was no agreement to pay for such extra work, (2) Davis was not damaged, and (3) Adams did not breach the subcontract.
Under the subcontract, Adams was obligated, at its own expense, to prepare the cement treated base to within the tolerances and specifications of the state highway department and its acceptance thereof. It was further provided that Adams would have such work done prior to notice to proceed to Davis.
The court found that despite requests, Adams failed to perform the corrective work necessary to bring the cement treated base within allowable tolerances; that Davis graded the cement treated base under the supervision of the highway department; and that such work was necessary to meet their requirements and pass their inspection before Davis could lay the concrete paving. The court further found that when Adams failed to grade the cement treated base to the allowable tolerances, Davis advised Adams that it would be necessary for Davis to perform the extra work and to backcharge Adams for such expense. The reasonable value of grading and preparing the cement treated base by Davis was found to be $23,500.
Relying upon United States for Use and Benefit of Lichter v. Henke Construction Co., 157 F.2d 13 (8th Cir.1946) and Chambless Painting Co. v. J. J. Fritch, General Contractor, Inc., 336 S.W.2d 200 (Tex.Civ.App.1960), Adams argues that Davis is not entitled to recover for the extra work of grading the base to the required tolerances because Adams had not agreed to pay for such extra work. These decisions are easily distinguishable upon their facts. In both Chambless and Henke Construction Co., the subcontract expressly provided that the general contractor would not be required to pay for extra work unless agreed to in writing before the work was done or the change made. The court in each case held that in view of the express agreement, the subcontractor should either have refused to proceed with the work until the condition was remedied or should have secured a written agreement in advance of doing the extra work. Furthermore, Chambless turned on a finding of fact, presumed to have been found by the trial court and supported by substantial evidence, that no extra work was performed. The instant contract does not contain such a provisions.
We believe the rule to be that a subcontractor is entitled to recover the reasonable value of extra work necessitated by the contractor's failure to perform his part of the contract, even though there was no express agreement to pay for any extra work. Winston & Co. v. Clark County Const. Co., 186 Ky. 743, 217 S.W. 1027; Charles R. Gow Co. v. Marden, 262 Mass. 545, 160 N.E. 319; Diana Stores Corporation v. M. & M. Electrical Co., 108 So.2d 486 (Fla.Ct.App.1959); Fanderlik-Locke Co. v. United States for Use of Morgan, 285 F.2d 939, 945 (10th Cir.1960).
Adams attacks findings that the cement treated base prepared by him did not meet the tolerances required by the specifications; that it was not in proper condition for the laying of the concrete paving thereon; and that the reasonable value of the extra work performed by Davis to permit the base to pass inspection of the highway department was $23,500 upon the ground that they are unsupported by substantial evidence. He also argues that the denial of contrary requested findings and conclusions constitutes reversible error. It would serve no useful purpose to detail the conflicting evidence on these issues, but it was for the trial judge, as the trier of the facts, to determine the weight and credibility to be given the testimony of witnesses. Zengerle v. Commonwealth Insurance Co. of N.Y., 63 N.M. 454, 321 P.2d 636; Fitzgerald v. Fitzgerald, 70 N.M. 11, 369 P.2d 398. A review of the record discloses that the trial judge resolved this conflict, and that his findings are supported by substantial evidence and, therefore, cannot be disturbed. The fact that there was contrary evidence which would have supported different findings and conclusions does not permit an appellate court to weigh the evidence. State ex rel. Reynolds v. Lewis, 74 N.M. 442, 394 P.2d 593; Shelley v. Norris, 73 N.M. 148, 386 P.2d 243; Sanchez v. Garcia, 72 N.M. 406, 384 P.2d 681.
The court found that Davis actually used 100,265.865 tons of sand and aggregate in preparing the concrete...
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CHAPTER 6 CONFIDENTIALITY AGREEMENTS AND DUE DILIGENCE
...Just Deserts: A Model to Harmonize Trade Secret Injunctions, 72 Neb. L. Rev. 515 (1993). [29] Gruschus v. C.R. Davis Contracting Co., 409 P.2d 500, 504 (N.M. 1965) (explaining that a liquidated damages clause will only be unenforceable "when the stipulated amount is so extravagant or dispro......
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CHAPTER 6 CONFIDENTIALITY AGREEMENTS AND DUE DILIGENCE
...Just Deserts: A Model to Harmonize Trade Secret Injunctions, 72 Neb. L. Rev. 515 (1993). [29] Gruschus v. C.R. Davis Contracting Co., 409 P.2d 500, 504 (N.M. 1965) (explaining that a liquidated damages clause will only be unenforceable "when the stipulated amount is so extravagant or dispro......