Hutchison v. King

• Citation: 206 Va. 619,145 S.E.2d 216
• Court: Supreme Court of Virginia
• Decision Date: 29 November 1965
• Parties: Joseph O. HUTCHISON v. J. Rodney KING.

Page 216

145 S.E.2d 216

206 Va. 619

Joseph O. HUTCHISON v. J. Rodney KING.

Supreme Court of Appeals of Virginia.

Nov. 29, 1965.

John T. Hazel, Jr., Fairfax (J. William Gilliam, Kelly, Farley & Lawson, Fairfax, on brief), for plaintiff in error.

Peter A. Cerick, Herndon, on brief, for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

GORDON, Justice.

This action was brought on a contract for the placing of sod or turf on the ditch lines of the access road to the Dulles International Airport.

J. Rodney King, who is a landscape contractor, had entered into a subcontract with the general contractor (the general contractor with the Federal Aviation Agency or 'F.A.A.') by which King agreed to do landscape work at the Airport. The contract sued on is a sub-subcontract between King and Joseph O. Hutchison by which Hutchison agreed to place sod on the ditch lines of the access road for King.

Hutchison alleged that by the contract sued on, he agreed to place 17,300 square yards of sod on the ditch lines, and King agreed to pay him 40cents per square yard for sod placed in accordance with the terms of the contract. Hutchison placed more than 17,300 square yards during June and July 1961. Having been paid by King for only 7,033 square yards, Hutchison asked judgment for the amount owing on the remaining 10,267 square yards, $4,106.80, plus interest and costs.

King contends that the lower court correctly entered judgment for him, since he owes Hutchison nothing for the 10,267 square yards. Admittedly, Hutchison placed at least 17,300 square yards of sod on the ditch lines, but the 10,267 square yards in question were dislocated or washed away by storms during June and July 1961, soon after the sod was placed. King says that under the terms of the contract he was obligated to pay Hutchison only if the sod was approved for payment by the 'contracting officer', and that Hutchison did not satisfy this condition.

The questions are: (1) Did the contract between Hutchison and King, properly interpreted, (a) require only that Hutchison place the sod in a manner satisfactory to the 'contracting officer's' representative at the job site, or (b) require also that the sod as placed be approved for payment by the F.A.A.? (2) Did Hutchison perform his agreement under the contract so as to entitle him to recover for the 10,267 square yards of sod for which he was not paid?

It was incumbent upon the trial judge, and it is now our function, to interpret the contract from the facts at hand.

The oral contract was made by Hutchison and Orlando King, who acted as agent for his brother, J. Rodney King. (There was no direct communication between Hutchison and J. Rodney King until after the consummation of the oral contract on or about June 1, 1961.) Later, a letter was signed by J. Rodney King and Hutchison to confirm the understanding.

According to Hutchison, the oral contract obligated him to obtain sod that was 'good enough' and 'put it in the ditch lines', and it was agreed he 'was to receive payment each month for all sod put on the job in an approved manner'.

Hutchison said he made these points clear to Orlando King, when the oral contract was made: 'I am not putting it in to be accepted six months from now by the engineers or anyone else. It was to be put in, in an approved manner, on that date. There was no guarantee, either written or verbal that I would do anything to the sod to maintain it. There was no maintenance clause anywhere. There was never any in our discussions. I was furnishing and placing the material. And that was our agreement purely and simply with Mr. Orlando King'.

Orlando King's testimony respecting the oral understanding was: '[T]he agreement was, he [Hutchison] was to be paid as soon as the amount was approved by the Contracting Officer, by the inspectors. When that amount was approved, then my brother would pay him, that he would not have to wait until my brother got his check, and that that estimate went in the 15th of every month. As soon as the Inspecting Officer said what they were going to pay for on that estimate, then Mr. Hutchison would be paid that amount right away'.

It should be noticed that Orlando King's testimony corroborated Hutchison's testimony in that he referred to approval 'by the Contracting Officer, by the inspectors' or the 'Inspecting Officer'.

Otherwise, it is not clear what point Orlando King intended to emphasize in his testimony concerning the oral contract. He may have intended to refer only to the times when Hutchison would be paid for work approved by the inspectors, for King made it clear that 'he [Hutchison] would not have to wait until my brother got his check and * * * that estimate went in the 15th of every month'. On the other hand, he may have intended to describe the understanding as requiring acceptance for payment by the Government as a condition to Hutchison's right to receive payment.

Whatever interpretation might be given to Orlando King's testimony about the oral understanding, J. Rodney King is bound by the provisions of the confirming letter, which has been mentioned. This letter, dated June 12, 1961, was written by J. Rodney King to Hutchison; and Hutchison signed it to evidence his approval. It reads:

'This letter is to confirm your agreement to furnish, deliver and place the sod /a/ .40cents per sq. yd., as per the specifications and to the satisfaction of the Contracting Officer.

'We will pay you each month for the amount turned in and accepted by the Engineers.

'Any decisions relative to the Job will be up to my brother Orlando.'

The intent of the first and second paragraphs of the letter must be determined.

'This letter is to confirm your agreement to furnish, deliver and place the sod /a/ .40cents per sq. yd., as per the specifications and to the satisfaction of the Contracting Officer.'

The first part of this paragraph confirms Hutchison's position, that Hutchison agreed 'to furnish, deliver and place the sod'. No reference is made to any obligation to maintain the sod or to any warranty that the sod would remain in place after it was laid.

The succeeding words prescribe that the sod must be placed 'as per the specifications and to the satisfaction of the Contracting Officer'.

'The Contracting Officer' is not identified in the letter, but his identity, or at least the identity of his designated representative, may be made clear by reference to the testimony of Frank J. Quish, an engineer in the employ of the firm of Amon and Whitney, and by reference to the Federal regulations relating to Government contracts.

Quish testified that Amon and Whitney was employed by the F.A.A. to act as the supervising engineers for the construction of the Airport. The firm's responsibility was 'to take the project plans and specifications and see to it that they are abided by'.

The firm of Amon and Whitney, then, acted as 'Resident Engineer' for the Airport project, as that term is defined in the Code of Federal Regulations. The Code provides (in Chapter 1 thereof entitled Federal Procurement Regulations): 'The term 'Resident Engineer' means that employee of the Government designated to represent the Contracting Officer at the site of the work for the purpose of inspecting the work to determine if it meets contract requirements'. 41 C.F.R. § 2-7.601.1. As Resident Engineer, Amon and Whitney was the representative of the Contracting Officer at the job site, with the duties outlined in the definition.

It follows that if Hutchison furnished, delivered and placed the sod to the satisfaction of the firm of Amon and Whitney, he performed this undertaking 'as per the specifications and to the satisfaction of the Contracting Officer'. This conclusion necessitates an examination of additional evidence to determine what person or persons were authorized by Amon and Whitney to determine, on behalf of that firm, that sod had been laid in accordance with the plans and specifications. ¹

Quish represented Amon and Whitney as office engineer during the construction of the Airport. He was 'retained by * * * [his] company to prepare these estimates, to keep records of the construction procedures and accomplishments, and also to see to it that the contractor, the prime...