Jackson v. Sam Finley, Inc.

• Decision Date: 06 September 1966
• Docket Number: No. 22105.,22105.
• Citation: Jackson v. Sam Finley, Inc., 366 F.2d 148 (5th Cir. 1966)
• Parties: James A. JACKSON, trading as Jim Jackson, Appellant, v. SAM FINLEY, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

366 F.2d 148 (1966)

James A. JACKSON, trading as Jim Jackson, Appellant, v. SAM FINLEY, INC., Appellee.

No. 22105.

United States Court of Appeals Fifth Circuit.

September 6, 1966.

COPYRIGHT MATERIAL OMITTED

John H. Haley, Little Rock, Ark., T. Y. Minniece, Meridian, Miss., for appellant.

J. A. Covington, Roger B. Shows, Snow, Covington, Shows & Watts, Meridian, Miss., for appellee.

Before RIVES and THORNBERRY, Circuit Judges, and GARZA, District Judge.

RIVES, Circuit Judge.

This case presents an attempt to recover the fair value of work performed on a street resurfacing project in Meridian, Mississippi, during 1961. The appeal is from a judgment dismissing the complaint on its merits and awarding costs to the appellee. We affirm.

In the fall of 1961, the City of Meridian commenced a major street resurfacing program. Part of the contemplated work was the hot planing of some (but not all) of the streets prior to re-paving them. Hot planing is a process for removing a portion of the existing street surface so that the resurfaced street will not be higher than the curb; the flow of water off the resurfaced street will therefore not be impeded. The machine used to perform this work has a heating device to soften the pavement followed by a cutting edge which shaves or scrapes the material from the street. A conveyor then picks up the removed material and places it in a dump truck which follows the machine. Normally the machine will cut one quarter of an inch on each pass over a street; a cut to a depth of one inch, therefore, will generally require from four to six passes, depending on the nature of the material being removed. Hot planing jobs are divided into "heavy cutting" and "light cutting," the former encompassing situations where from an inch and a half to three inches of material is to be removed, and the latter including cuts of less than one and one-half inches. On a light cut, then, only a few passes may be required, while a heavy cut may require eight or more passes. The cost of a hot planing operation depends almost entirely on the number of passes that must be made over the street; a job requiring two passes will cost approximately twice that of one requiring only a single pass.

In preparation for receiving bids on the project the City of Meridian prepared a Notice to Contractors (containing an estimate of the work on the project) and an Instructions to Bidders. The Notice to Contractors contained, as one item of "the engineer's estimate approximately of the work to be done," 160,000 sq. yards of hot planing. The Instructions to Bidders had affixed to it a list of streets titled, "Streets and Avenues to be Resurfaced in 1961 Resurfacing Program." The Instructions contained the cautionary note: "This list of streets is not firm and may be modified by the City Council * * * in that certain streets and/or avenues may be removed * * * and others may be added at their discretion."

Sam Finley, Inc., the appellee, was interested in obtaining the prime contract for the resurfacing project. James A. Jackson, the appellant, heard informally of the project and contacted Finley concerning the hot planing portion of the work. Finley suggested that Jackson arrange for an appointment to look over the job. On September 15, Jackson flew to Meridian and was met by Art Gammon, Finley's superintendent of Meridian area operations, who took Jackson over a number of Meridian streets.

What occurred during this inspection trip is not clear. Jackson testified that when he was told that a unit price was desired, he told Gammon that it would be necessary to calculate an average depth of the cuts that would have to be made. Gammon then told him that the cuts would vary from zero to three inches, and that approximately twenty-five per cent would be heavy cuts and the remainder would be light. He drove Jackson over several streets, telling him that these were representative of the heavy cutting, and then drove him over several others, telling him that these were representative of the light cutting. Jackson testified that Gammon had with him a printed list (apparently a copy of the list of streets to be resurfaced provided by the City), and that on this list were notations indicating what streets were to be hot planed. Gammon assertedly told Jackson that he had obtained this information informally from an employee in the City Engineer's Office.

Gammon, on the other hand, testified that he did have a separate list of streets he thought would be hot planed and that Jackson may have seen this. (He denied that he had, at the time of Jackson's visit, marked a copy of the City list.) Gammon maintained, however, that he had told Jackson that the separate list had been compiled by Gammon himself and represented only his opinion, based on inspections by himself and his men, as to which streets would be planed. He denied representing that he had obtained the information from the City Engineer's Office; in fact, he testified that he explicitly hold Jackson that he had no information from the City Engineer's Office as to what streets would be hot planed.

After the inspection tour, Jackson estimated that an average cut of approximately one inch would be required for the project and submitted a bid of $.24 per square yard. Finley's subsequent proposal to the City listed the hot planing at $.26 per square yard; the Proposal to Contract form contained the following provision: "I/We understand that the quantities mentioned below are approximate only, and are subject to increase or decrease; and hereby propose to perform any increased or decreased quantities of work at the unit prices bid."

On October 6, Finley and the City executed a general contract for the resurfacing work. The Notice to Contractors, the Specifications, the Special Provisions, the bond, and the Proposal to Contract were incorporated into the contract. The hot planing work was listed at a unit price of $.28 per square yard, "if performed on all streets herein mentioned, or any part thereof."

On October 7, Finley and Jackson executed a subcontract for the hot planing work at the $.24 per square yard price. The principal contract and all items incorporated in it were made a part of the subcontract, which also contained the following provisions:

"It is understood and agreed between the parties hereto that Contractor makes no representation or warranty as to the amount of the work specified in the aforesaid Principal Contract and herein contracted to be done and performed by Subcontractor, but payments by Contractor to Subcontractor will be made only for the actual quantities of work performed to the satisfaction of the Contractor, in accordance with said Principal Contract, and this subcontract, and as allowed and approved by Owner or its representative.

"It is further understood and agreed that the quantity of the work herein contracted to be done by Subcontractor may be increased or decreased as provided in said Principal Contract without in any way invalidating this subcontract or the unit price or prices hereinabove provided for.

"Contractor reserves the right, at any time and from time to time, to change or alter the scope of the work herein undertaken by Subcontractor, by making additions to and/or deletions from said work. Any such change shall be directed by written change order; and in such case, Subcontractor\'s compensation shall be proportionately adjusted, on the basis of original unit prices where applicable. * * *"

Work under the subcontract was begun in early October. The downtown area, which required heavy planing, was started first because the local businessmen wanted this portion completed before the Thanksgiving period. No overall plan of the project was provided Jackson's local supervisor; the work progressed on a day-to-day basis, pursuant to an agreement among Finley's representative, Jackson's supervisor, a representative of the City Engineer's Office and the City Inspector, under which, to minimize disruption of City activities, the City Inspector was authorized to direct, after a street was finished, on which streets work was to be begun next.

About two weeks after work had started, Jackson became alarmed at the slow progress of the hot planing, and came to Meridian to meet with the City Inspector, Finley's supervisor and a representative of the City Engineer. Jackson testified concerning this meeting:

"I said we have been down here in the downtown area in this heavy cutting and we are losing our shirts * * * but I just want to be sure that we get it scheduled out so that we can be assured of the entire job * * *. They assured me that * * * they would get a work schedule and I felt at that time that I would be certain of my light and heavy cuts * * *. In fact I made a joke about it at the time I said we don\'t want to be left holding the bag doing all of the heavy work where we are losing our shirt and they assured me that the scheduling of the entire job * * * would take place."

Jackson reported, however, that his supervisor could never get the City Inspector and the representative of the City Engineer's Office together to work out a schedule for the entire job.

Several streets not on the original list were added to the hot planing about this time. The testimony is not clear as to whether this was before or after the meeting, although Jackson testified that at the time he went to Meridian he was aware that some "extra" planing was being done but that he was unaware of the extent of this work.

On December 2, after 112,502 square yards had been hot planed, the City announced that the planing was to be stopped. Jackson, upon hearing of the stop order, came immediately to Meridian and a meeting was held in the City Manager's Office. Jackson testified that at this meeting he was told that the City had decided that hot planing was not desired for the lighter streets and that the planing was being cancelled rather than postponed until...