James Stewart Co. v. Dennett-Robertson Electric, Inc.
| Decision Date | 31 May 1961 |
| Docket Number | No. 16974.,16974. |
| Citation | 291 F.2d 147 |
| Parties | JAMES STEWART COMPANY, Appellant, v. DENNETT-ROBERTSON ELECTRIC, INC., Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Eugene S. Ives, Martin J. Kirwan, Francis E. Smith, Los Angeles, Cal., and Wallace O. Tanner, Phoenix, Ariz., for appellant Stewart Co.
Anderson, McPharlin & Conners, Robert E. Jones, Los Angeles, Cal., for Dennett-Robertson Electric Inc.
Before BARNES, JERTBERG and MERRILL, Circuit Judges.
This case involves two disputes as to sums remaining due to a subcontractor (Dennett-Robertson Electric, Inc.) from the prime contractor (James Stewart Company) upon construction work performed for the United States Government at Edwards Air Force Base in Southern California. The action originally was brought under the Miller Act, 40 U.S.C. § 270b, against the parties to this appeal and their respective sureties by one who had furnished supplies upon the project. The subcontractor and prime contractor filed cross-claims against each other. The dispute with the materialman was settled and only those between these parties were litigated in the district court.1
These disputes involved various claims relating to extra work asserted to have been performed by the subcontractor. The underlying question was whether such work was in fact extra work or whether, on the contrary, it had been included within the original contract as modified by agreement. The judgment ultimately rendered took into consideration many items of claim and offset which are not here disputed as well as those which are the subject of this appeal. The result was a judgment in favor of Dennett-Robertson in the sum of $7,160.67. Both parties have appealed, each appeal relating to a separate portion of the judgment.
The appeal taken by Stewart, the prime contractor, is from that portion of the judgment which recognizes a claim of the subcontractor in the sum of $9,017.85 for work performed in the data reduction building of the air force base. The court found that the reasonable value of the work performed was $10,217.32 and that the subcontractor had been paid the sum of $1,199.47. The prime contractor contended upon trial that the subcontractor had been paid in full since all but $1,199.47 of the work involved had been included in prior agreements.
This appeal presents but one issue: whether the district court erred in rejecting as an exhibit the agreement between the prime contractor and the United States which allowed the prime contractor only $1,331.03 for the work in question and which had been offered in evidence by the prime contractor in support of its contention. We have concluded that this was not error.
On May 23, 1955, Stewart, as prime contractor, entered into its contracts with the United States and with its electrical subcontractor, Dennett-Robertson. Thereafter work on the project commenced. During the course of the work numerous change orders were issued by the government modifying the original plans and specifications. The procedure normally followed in contract modification was as follows: The proposed change order would be submitted to Stewart by the government with a request for a bid. Stewart would obtain a bid from the affected subcontractor and upon that basis would submit its bid to the government. If acceptable to the government, a contract modification specifying the increase in compensation and the new total contract commitment would be executed by the government and by Stewart. Thereafter, a change order would be executed by Stewart and the subcontractor specifying the latter's increased compensation and the work would be performed in accordance with such agreement. This procedure was not followed on the occasion in question.
On March 25, 1957, the government issued the change order with which we are concerned, designated as "OC-5," and on April 3, 1957, forwarded it to Stewart with the request that Stewart submit its bid to the project engineer not later than April 15. It advised that work should not commence on the change until formally authorized. On April 8, Stewart requested a bid from Dennett-Robertson.
In the meantime, on April 5, the United States wrote to Stewart advising that work was to begin immediately with the formal contract modification awaiting completion of negotiations.
On April 10, Dennett-Robertson sent to Stewart its bid to do the electrical work covered by OC-5 for the sum of $10,217.32. On the same...
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