Kuswa & Associates, Inc. v. Thibaut Const. Co., Inc.
Decision Date | 12 October 1983 |
Docket Number | No. 82-CA-48,82-CA-48 |
Citation | 440 So.2d 1338 |
Court | Court of Appeal of Louisiana — District of US |
Parties | KUSWA & ASSOCIATES, INC. v. THIBAUT CONSTRUCTION CO., INC. |
T.J. Lestelle, New Orleans, for plaintiff-appellant/appellee.
Barbara Treuting Casteix, New Orleans, for defendant-appellee/appellant.
Before BOWES, GAUDIN and DUFRESNE, JJ.
This case comes to us on cross-appeals filed by plaintiff and defendant, after a judgment by the trial court awarding plaintiff the sum of $2,921.50, and dismissing defendant's reconventional demand. We reverse in part, affirm in part and amend.
Kuswa filed suit originally against Thibaut Construction Company for alleged damages in the form of lost profits, resulting from Thibaut's termination of various construction contracts with Kuswa. Thibaut reconvened to recover costs it claimed it incurred in repairing work purportedly done improperly by Kuswa. Additionally, Thibaut asserted a claim for damages in an amount equal to the "unnecessary" interest expenses which it supposedly incurred on its interim construction loans "as a result of Kuswa's unreasonable delay in performance of the contracts." The district court's dismissal of the reconventional demand was made without comment. However, the trial judge did state in his reasons for judgment that he found the contracts in question to have been made on a building-by-building basis, rather than "contingent" on plaintiff's performing the entire job. It is with this finding that we disagree.
On February 9, 1979, pursuant to a discussion with one Bill Christy (then supervisor of Thibaut Construction Company), Kuswa submitted a three-page "Proposal", describing in detail the proposed work and the price--$2,850.00 per four-plex for painting and 14 1/2 cents per square foot of sheetrock.
At the top of the page in this particular document is this vital language on which this controversy hinges: "This bid is contingent on Kuswa & Associates, Inc., doing the same work on all four-plexes which are sixty-two (62) in number."
This proposal, which states in the first sentence that it is a bid, was accepted by Thibaut, who, on March 28, 1979, entered into a "Sub-Contractor Base Agreement" with Kuswa, which agreement identifies this contract as one for painting and sheetrock: "1) The work to be performed hereunder is generally described as Bid from Kuswa & Associates, Inc."
Other than the standard form provisions, the only additional language refers to Price Lists, which state:
And, at the very top of the contract, above all other writing:
"See attachment I for the above (16) points."
Attachment I, according to the trial testimony, evolved when Kuswa, uncomfortable about "vagueness" in some of the provisions (the "16 points"), elaborated on certain of them. For example, provision No. 12, formerly, provided:
12) From time to time under this agreement THIBAUT Construction Co., Inc. shall pay to Contractor upon completion and presentation of applicable Work Orders to the Superintendent in charge for his approval, sums in accordance with this agreement. Contractor expressly agrees in this context that he waives all rights to statutory or Constitutional liens on any job not fully performed by Contractor under this agreement.
Kuswa, in its attachment, added:
Attachments A and B are merely payment schedules for painting and sheetrock--$200.00 to prime the exterior, $1,500 to complete the interior, etc. That base agreement, along with attachments I, A and B, were contended by Thibaut to constitute the entire initial contract, without reference to the February 9th proposal. Such, too, was the opinion of the trial judge. This contention is one which we find untenable.
This so-called initial agreement (dated March 28th) does not, in and of itself and including the attachments, sufficiently identify the work to be done. This "contract" makes no mention of the address of the property, and does not specify the quality of materials, detail of workmanship, etc.
Broadly considered, specifications of a contract can be or may be included within the body of the contract or agreement, or it may form the contents of a separate document properly identified with the contract itself. Generally, specifications have to do with spelling out in detail the quality, quantity, character or conditions under which the subject matter of the contract may be or shall be performed. Specifically, the specifications should be definite, certain, explicit and express. [emphasis supplied] Toye Bros. Yellow Cab Co. v. City of New Orleans, 264 So.2d 768 (La.App. 4th Cir.1972).
This court finds that the word "bid" referred to in the March 28th contract itself concerns the February 9, 1979 document, and thereby incorporates this document into the initial contract itself.
Contracts need not be imposed in a single instrument but may include documents by reference thereto. Calcon, Inc. v. Young Companies, Inc., 322 So.2d 883 (La.App. 1st Cir.1975). We find the wording of the phrase "Bid from Kuswa & Associates, Inc." sufficiently clear to describe the proposal of February 9th. We further find that incorporation of this bid (February 9th) is a necessary action in order to give sense to the contract as the February 9th instrument details the preparation, painting, staining, sheetrock size, quality of texture, etc.
The pay schedules and enlargement on the base provisions (the attachments) do not provide such specifications. We find therefore that the trial court was in error when it concluded that the word "bid" referred solely to the attachments "A" and "B".
We are of the opinion that "bid" referred to the proposal of Kuswa dated February 9th as it delineated the specifications for the entire contract initially contemplated by the parties for painting and sheetrocking. Ergo, the Sub Contractor Base Agreement of March 28th, with attachments I, A, and B, and the February 9th proposal, comprise the entire original contract between Kuswa and Thibaut. The contract considered without the February proposal is not of itself meaningful within the contemplation of Civil Code articles 1951 and 1955. 1
But an agreement must be interpreted as a whole and, where possible, effect should be given to all clauses of an agreement; and a construction will be preferred which gives a reasonable meaning to each clause of an agreement, rather than one which leaves any clause useless or inexplicable. Articles 1951, 1955, LSA-Civil Code, and jurisprudence thereunder. [emphasis supplied]. Green v. Southern Furniture Co., 94 So.2d 508 (La.App. 1st Cir.1957)
It follows, therefore, from the wording of the February 9th bid, that the contract was for 62 four-plexes, contemplated by Mr. Thibaut, as the number of buildings yet to be constructed at the time of the contract.
Defendant argues that had the proposal in question been intended to be part of the March 28th contract, it would have been so identified as another attachment. Considering the rather vague manner with which business dealings between the parties was handled, the court finds this argument somewhat specious.
Thibaut's argument that it was not the owner of 62 lots in the subdivision, or did not have an agreement to purchase the lots, or that it did not have construction financing available, etc., and so could not have contemplated contracting for 62 buildings is equally unsound. The fact that Kuswa was given a list at the inception of the arrangement, of 62 addresses of the four-plexes, for billing purposes and, more importantly, the fact that as of the date of trial, almost all 62 buildings had been completed, defines with much certainty the intent of Thibaut to build 62 units.
Consequently, in accordance with Civil Code Article 1945(2)(3), we are bound to give legal effect to these contracts according to the true intent of the parties; and intent is to be determined by the words of the contract when these are clear and explicit and lead to no absurd consequences. We conclude that, as shown above, to give credence to defendant's version of the contract would, indeed, lead to absurd consequences.
Such interpretations as we have placed on the documents of February 9th and March 28th we find relevant to the sheetrock and painting contracts only. Subsequent to the March 28 contract, another document, also titled "Sub-Contractor Base Agreement" and dated April 30, 1979, delineated an apparent change in the pay schedule to be paid to Kuswa for sheetrocking. From the testimony of Robert Kuswa, it is evident that a change had taken place within Kuswa's business to this extent; previously, at the inception of the contract in question, Kuswa had actually "subbed" the sheetrock work to one Dave Brown. When the April 30 contract was signed, Kuswa had decided to have its own workmen perform the sheetrock work, and actually did complete one house. We find, therefore, that the April 30 document was an amendment to the March contract, and, therefore, relates back to that agreement.
We do not believe, however, that there is sufficient evidence before us to permit this court to conclude that the frame and trim contracts were also intended to encompass all 62 four-plexes. The major basis for this reasoning is that none of those agreements or revisions, dated August 7, August 8, October 8, November 29, and November 30, make reference to the original contract at any point. The type work to be done was separate and distinct from the type of work originally specified, (as opposed to Duffy v. Lagasse, 65 So.2d 337 (Ct.App. Orleans 1953), upon which plaintiff relies.) Different equipment and materials were needed to complete the trim and frame, than to complete the paint and sheetrock. While it may very well be that Kuswa and Thibaut both intended plaintiff to trim and frame all of the...
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