LURIA CONSTRUCTION CORP. OF GEORGIA v. Union Electric Co.

• Decision Date: 02 January 1962
• Docket Number: No. 18909.,18909.
• Citation: 297 F.2d 339
• Parties: LURIA CONSTRUCTION CORPORATION OF GEORGIA, Appellant, v. UNION ELECTRIC COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

297 F.2d 339 (1962)

LURIA CONSTRUCTION CORPORATION OF GEORGIA, Appellant, v. UNION ELECTRIC COMPANY, Inc., Appellee.

No. 18909.

United States Court of Appeals Fifth Circuit.

January 2, 1962.

Beall & Caro, Philip D. Beall, Forsyth Caro, Pensacola, Fla., for appellant.

William Fisher, Jr., Fisher & Hepner, Pensacola, Fla., for appellee.

Before BROWN, GEWIN and BELL, Circuit Judges.

PER CURIAM.

This controversy grows out of a contract covering certain electric work done by Union, the subcontractor, for Luria, the prime contractor, in connection with the construction of air force maintenance docks at Eglin Air Force Base, Florida. There is no distinctive matter of law presented and no significant difference between the parties on the applicable controlling principles of law. What there is, and all there is, is a substantial difference over facts. These facts are of a kind which can scarcely be repeated so no purpose will be served in an elaboration of them or in a restatement of the unchallenged legal propositions.

The Subcontractor's suit, essentially successful below, had a dual aim. First, on the basis that a specific inclusion of the disputed work was a mistake, the formal written contract had to be modified to exclude that work. Second, this work having been performed by the Subcontractor at the specific request of the Contractor after the alleged mistake was discovered and its existence was known to both, the Subcontractor was entitled to recover for it on a quantum meruit basis.

The written contract obligated the Subcontractor "to furnish, * * * and install all items for a complete hangar electrical system in accordance with the drawings M-1-E, M-2-E * * * M-6 and M-7-E * * *."

The matter in dispute is the work covered by plans M-1-E. The Court, after an extended trial in which all witnesses were interrogated at great length, found that this was mistakenly included in the contract. There was ample basis for that conclusion as even a brief resume makes plain. In answer to the Contractor's solicitation for proposed bids, the Subcontractor on October 27, 1958 made a quotation for the work, describing it as shown by plans M-7-E. The Contractor's planning engineer immediately discussed the matter with Subcontractor's estimator. The Court credited the latter's testimony that he was told that reference to M-7-E was in error and it should have been M-1-E. Thereafter a further proposal was sent in on December 11, 1958. But where in the October 27 letter it was M-7-E that was...