J. H. Jenkins Contractor, Inc. v. City of Denham Springs

• Decision Date: 16 December 1968
• Docket Number: No. 7487,7487
• Citation: 216 So.2d 549
• Parties: J. H. JENKINS CONTRACTOR, INC. v. CITY OF DENHAM SPRINGS.
• Court: Court of Appeal of Louisiana — District of US

Page 549

216 So.2d 549

J. H. JENKINS CONTRACTOR, INC. v. CITY OF DENHAM SPRINGS.

No. 7487.

Court of Appeal of Louisiana, First Circuit.

Dec. 16, 1968.

Nesom & Mellon, Denham Springs, for appellant.

Sanders, Miller, Downing & Kean, Baton Rouge, for appellee.

Before LANDRY, REID and SARTAIN, JJ.

LANDRY, Judge.

This action by plaintiff, J. H. Jenkins Contractor, Inc. (Jenkins) against defendant, City of Denham Springs (City), is to recover under contract, and alternatively quantum meruit, the sum of $38,763.64, allegedly due as the difference between the total value of work performed aggregating $110,529.84, and the sum of $71,766.00 actually paid by the City to Jenkins. The contract in question called for the construction of an oxidation pond consisting of eight separate items collectively constituting an accessory to a comprehensive sewerage and drainage project undertaken by the City. From the judgment of the trial court in favor of Jenkins in the sum of $30,210.26, the City has appealed. We find no error in the ruling of the trial court and affirm same.

There is little or no dispute concerning the facts attending this litigation. The City concedes all work was fully and properly performed. The single issue on appeal involves a difference in meaning of the contract terms providing for the manner of payment for dirt moved by Jenkins in the course of constructing the oxidation pond and its appurtenances.

The agreement in question encompasses the clearing and grubbing of 120 acres of land to be ponded. It also calls for the laying of certain pipe, construction of fencing, seeding and fertilizing the pond area, digging a 'core ditch', erecting a gate and building approximately 9000 linear feet of containing levee fifty feet wide at the bottom, eight feet wide at the top and of an average elevation of five and one-half feet.

The contract calls for the pond area to be completely cleared of trees, stumps, grass and brush. It also provides that the pond be dug to a uniform depth of 33 feet above sea level, allowing for a plus or minus deviation of not more than one-half foot. The areas above the desired floor level were to be excavated to the depth indicated and the unearthed material utilized to construct the levee and fill the below grade areas of the pond to specification grade. The levee fill was to be deposited in six inch layers and compacted by running the contractor's heavy equipment back and forth over the loose dirt. It is conceded that loose excavated material possesses a shrinkage factor which is directly related to the degree of earth density. This means, the record shows, that a yard of loose excavated material taken from one area may be less dense and therefore not provide as much compacted fill as an equal amount of loose fill excavated from an area of greater soil density. It is also conceded that all earth possesses a shrinkage factor, consequently, to obtain a given quantity of compacted fill, a larger amount of loose excavation material is required.

The controversy herein concerns the foregoing phenomena. Item 2 of subject bid form calls for '74,000 c.y. fill for levee, Seventy-four cents $0.74, $54,760'. However, neither the contract nor specifications recite whether the estimated cubic yardage contemplated is to be measured in terms of loose fill excavated, or compacted yardage in the levee proper. Needless to state, plaintiff contends the former measure applies whereas defendant urges the latter. Defendant maintains that since the matter is in dispute, the interpretation of its engineer, J. C. Kerstens, is controlling considering the agreement expressly provides that any controversy regarding contract terms shall be resolved by the engineer whose conclusion shall be binding. Alternatively, defendant maintains that according to the explicit terms of the agreement, no quantity of earth moved in excess of the estimated 74,000 yards could be paid for without a written change order having issued prior to movement of such surplus.

The evidence discloses the excavation contemplated was divided into three phases. First, achieving the desired level of the pond and elevation of the surrounding levee. Secondly, the digging of a core ditch which was in effect an extension of the levee. Thirdly, some unspecified earth moving outside the pond area. Defendant's engineer estimated the quantity of earth to be dug from the pond area at 74,000 cubic yards and plaintiff's bid of 74 cents per cubic yard for pond excavation, core ditch and outside digging was the low bid. It is conceded plaintiff is entitled to payment for 3,288 yards excavated in construction of the core ditch and 2,359 yards for excavation outside the pond area, all at $.74 per cubic yard. It is further admitted plaintiff is entitled to $80.00 for constructing a gate. Plaintiff maintains, however, that to construct the levee and level the pond floor, he was required to excavate 109,716 cubic yards for which he should be paid at the rate of $.74 per unit. According to plaintiff, defendant owes the sum of $110,529.84, less credit for payments aggregating $71,766.00, leaving a balance due of $38,763.84. Defendant maintains plaintiff is entitled to payment for pond excavation only to the extent of the 74,000 yards estimated, and for the ditch, outside digging and gate, on which basis it concedes owing plaintiff a balance of $12,414.00.

J. H. Jenkins, Sr. and Jr. (the latter a Civil Engineer) in effect testified they had been engaged as dirt contractors for quite some time. They also stated that when earth moving jobs are contracted in the manner employed in the case at hand, that is, on a unit price basis with an estimated number of units called for, it is customary in the trade that the unit price bid is to be paid on loose excavation measurements unless the contract expressly provides otherwise. They testified further that if compacted measurement is intended, it is specifically so indicated in the contract plans or specifications. In addition both stated that in relying upon this presumption, they assumed they would be paid bid unit price per loose yard excavated regardless of the number of yards ultimately dug. The Jenkins further stated that as the job progressed it became evident the estimated yardage would be exceeded and they made it clear to defendant's engineer, Kerstens, that they expected to be paid for the surplus dirt excavated. The Jenkins concede Kerstens never gave them a definite response. They stated, however, Kerstens' reply indicated he would make adjustments in the work procedure to insure that the estimate of 74,000 yards would not be exceeded and impliedly led them to believe additional work would be paid for at bid price.

Defendant's agent, J. C. Kerstens, Civil Engineer, testified he personally drafted the contract plans and specifications. He concedes that the contract does not state the method of measurement of yardage but contends that inasmuch as the specifications indicate compaction of the levee fill, this is to be taken as an indication of compacted measurement. Mr. Kerstens acknowledged that cross sections of the pond area taken before commencement and upon completion of the project reveal a total of 92,421 yards excavated. He further testified, however, that irrespective of the amount of pond excavation, plaintiff is entitled to payment only for 74,000 yards of compacted levee fill at the unit price of $0.74. He further contends plaintiff is not entitled to be paid for excavation required to level the pond floor as this was not specifically mentioned as a 'pay item' in the specifications. He acknowledged, however, that a uniform pond floor would greatly aid the oxidation process.

Edward E. Evans, Consultant Civil Engineer, testifying on behalf of plaintiff, computed total pond excavation of 92,402 yards to reduce 'high spots' and an additional 10,143 yards moved to raise formerly 'low' areas to the desired grade. In Evans' professional opinion, when earth moving contracts are let on a unit basis, as was done herein, it is customary and virtually mandatory that the method of measurement be specified in the contract provisions. He also testified that in contracts of this nature quantities are loose measured unless otherwise expressly indicated. He explained the underlying reason to be that due to shrinkage and other factors encountered in construction, the engineer's estimation of compacted units in the project (the levee) is only an approximate measure, meaning the compacted measure stated is only an indication of the quantity of loose material contained therein. Evans also stated that in contracts of this nature it is customary to determine total yardage by cross-sectioning the excavation area before construction starts and upon completion of the project. Evans also stated that in instances of this nature it is customary not to obtain change orders for overruns of quantity but rather reflect such surplus in the engineer's final estimate of units performed. He elucidated that it is impossible to tell in advance what exact additional quantity will be required consequently the better practice is to wait until the job is completed and reflect either an overrun or underrun in the engineer's final estimate. Finally, he testified that subject contract is the first and only unit price agreement which failed to specify the method of yardage measurement. He agreed with Kerstens that a uniformly level pond floor would aid in the oxidation process.

Plaintiff produced Ross Cox and Frank Sullivan, both experienced dirt moving contractors, and each of whom had been an unsuccessful bidder on the subject work. They testified in substance that when they bid on this contract as a unit price job, they expected to be paid the quoted unit price for each loose yard of excavation as the contract was silent on method of measurement and did not expressly recite measurement would be on a compacted yard basis. They...