Love v. H. F. Const. Co., Inc.

• Decision Date: 20 June 1977
• Docket Number: No. 1,No. 76-391,76-391,1
• Citation: 552 S.W.2d 15,261 Ark. 831
• Parties: William Earl LOVE et al., Appellants, v. H. F. CONSTRUCTION COMPANY, INC., Appellee
• Court: Arkansas Supreme Court

Page 15

552 S.W.2d 15

261 Ark. 831

William Earl LOVE et al., Appellants, v. H. F. CONSTRUCTION COMPANY, INC., Appellee.

No. 76-391.

Supreme Court of Arkansas, Division No. 1.

June 20, 1977.

Williams & Gardner, Russellville, for appellants.

Gordon, Gordon & Eddy, Morrilton, for appellee.

HOLT, Justice.

This appeal involves separate contracts for the construction by appellee of five dams for the appellants, Commissioners of Point Remove Creek Watershed Improvement District. By the terms of the written contracts, the appellee contractor was required to make whatever changes or modifications which might be requested by appellants during the construction of these dams. If any increased or lessened costs resulted and could not be agreed upon, the contractor had the right to reserve the claim and seek an adjustment later. After the completion of the projects and being unable to resolve their differences as to certain changes during construction, appellee contractor brought suit against the appellants to recover certain claims allegedly due which resulted from modifications, changed conditions, an overrun, an underrun and a liquidated damage assessment. The quality of appellee's construction is not disputed. The jury returned verdicts in favor of appellee on all five contracts. Appellants assert four points for reversal. They first argue that the court erred in denying their motion for a directed verdict on four of the five contracts in which appellee released all claims without also stating the dollar amount as to its excepted claims. Further, if that was not error then the court erred in not granting a directed verdict because of insubstantial evidence to support the verdicts. We discuss these contentions together.

The five written contracts specified that upon completion of the work, appellee would be paid when it furnished a final release of all claims against appellants "other than claims in stated amounts as may be specifically excepted by the Contractor from the operation of the release." When appellee signed the releases and was paid, it excepted as to certain specifically listed claims on all of the five releases. Only on one of the five releases did appellee state the amount claimed.

Appellants argue that since the appellee contractor signed a release when paid, it is limited by the written terms of the contract to a recovery of those specific exceptions reserved and the amounts stated in the releases. Appellants rely on cases from the U.S. Court of Claims: U.S. v. Wm. Cramp & Sons Ship and Engine Building Co., 206 U.S. 118, 27 S.Ct. 676, 51 L.Ed. 983 (1907); J. G. Watts Construction Co. v. U.S., 161 Ct.Cl. 801 (1963); Shepherd v. U.S., 113 F.Supp. 648, 125 Ct.Cl. 724 (1953), and Inland Empire Builders, Inc., v. U.S., 424 F.2d 1370, 191 Ct.Cl. 742 (1970). Here appellant recognizes that these cases are not decisive. However, it is asserted that the principle of law enunciated there is persuasive. It is argued that the tenor of these cases is that a contractor's release limits any future recovery unless there is a specific item, together with the amount claimed, reserved in the release. Even so, here, when the appellee contractor executed the releases, it excepted or listed certain claims on each of the five contracts. To say that appellee intended to release appellants from all claims would be inconsistent with the inclusion of the specifically excepted claims. As we now discuss, it appears the appellants had notice in writing of the dollar amount of each exception or claim (except two) before or at the time the releases were executed by the appellee. In our view, consequently, there was substantial compliance with the written contract requirement that the stated amounts were to be indicated in writing along with the enumerated exceptions or claims.

In testing the sufficiency of the evidence on a motion for a directed verdict, the testimony and all reasonable inferences are viewed in the light most favorable to the party against whom the verdict is sought. Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W.2d 307 (1969). As to the substantiality of the evidence, we will not disturb the jury's conclusion on appeal unless we can say there is no reasonable probability in favor of appellee's version, and then only after giving legitimate effect to the presumption in favor of the jury findings. Beard v. Coggins, 249 Ark. 518, 459 S.W.2d 791 (1970); Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822 (1968), and Lumbermens Mutual Ins. Co. v. Cooper, 245 Ark. 81, 431 S.W.2d 256 (1968). Further, in testing the sufficiency of the evidence as being substantial on appellate review, we need only consider the testimony of the appellee and that part of the evidence which is most favorable to the appellee. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W.2d 689 (1935).

Appellants primarily attack what is characterized as the "speculative" nature of the appellee's supporting testimony with respect to additional sums due it as a result of modifications, etc., by appellants. However, the record shows that Watts, president of the appellee construction company, provided the jury with the necessary details (except two) concerning contract rates, applicable schedules, deletions and relevant facts in support of appellee's claim for equitable adjustment or additional payments.

On Site 12, Contract WF-13, as to modification 3 (sloping of right abutment), Watts provided in writing by exhibit 5, before he signed the general release, an itemized cost schedule, deletions and the amount paid under the contract, showing a claimed adjustment due appellee of $18,448.72, which the jury awarded, for additional excavation. As to modifications 8 and 11, Watts testified that the necessity for more fill dirt entailed transportation of dirt from a further and more inaccessible site at a cost of $1.06 per cubic yard. Under the contract appellee was paid only $.30 per cubic yard, leaving an adjustment of $14,700 for the balance due. However, appellee does not document any writing which reserves this stated amount or claimed adjustment.

On Site 18-Contract WF-20, exceptions were made as to modifications 3 and 6. Watts testified that a change in the excavation...