Macdougald Const. Co v. Tate Highway Dep't, 27221.
| Decision Date | 17 March 1939 |
| Docket Number | No. 27221.,27221. |
| Citation | 2 S.E.2d. 197 |
| Parties | MacDOUGALD CONST. CO. v. TATE HIGHWAY DEPARTMENT. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where a road-construction contract requires the contractor to use "aggregate, " it may be shown that under a proper construction of the contract the contractor has the right to use stone aggregate.
2. Where the contractor accedes to the demand of the opposite party to furnish material of a kind which the contractor contends he is not under an obligation to furnish under the contract, and the opposite party insists otherwise, and the material insisted upon is of a more expensive quality, and the contractor furnishes the materials demanded and states to the opposite party that he expects to be reimbursed for the cost of the more expensive material the contractor is not estopped from afterward insisting on his construction of the contract and recovering for the extra cost of the material
3. A provision in a construction contract that a decision of the opposite party's engineer on any question connected with the execution of the contract, or on any failure or delay in the prosecution of the work by the contractor, shall be final and conclusive, does not confer upon the engineer authority to construe the contract by determination of what labor or material the contractor is under obligation to furnish.
Error from Superior Court, Cobb County; J. H. Hawkins, Judge.
Suit by the MacDougald Construction Company against the State Highway Department of Georgia for costs of material furnished for construction of highway which plaintiff was under contract with defendant to construct. To review a judgment dismissing the petition following the sustaining of a demurrer, the plaintiff brings error.
Reversed.
MacDougald Construction Company instituted a suit against the State Highway Department of Georgia for the recovery of $7,792.93 later reduced by amendment alleged as due the plaintiff by the defendant as representing the costs of material furnished by the plaintiff to the defendant in the construction of a road which the plaintiff was under a contract with the defendant to construct, and which constituted an extra over and above the terms of the contract. It was alleged that the plaintiff had entered into a contract withthe defendant by which the plaintiff, for the sum of $107,535.92, was to furnish and deliver materials and perform all work and labor required in the improvement and construction of about 18 miles of surface treatment road in this State on the Madison-Athens road in Morgan and Oconee Counties, in strict and entire conformity with the provisions of the contract, the notice to contractors, proposals, plans and specifications prepared by the State Highway engineer, or his authorized representatives, the originals of which were on file in the office of the State Highway engineer, and which plans, specifications, notices to contractors and proposals were made a part of the agreement as fully and to the same effect as if the same had been set forth at length in the body of the contract, that the said contract was known as an emergency construction highway project, the funds for which were supplied by the United States government for the purpose of providing employment for the unemployed, the said funds being Georgia's pro rata part of the appropriation made by the United States government to the several states for the purpose of providing employment for the unemployed, that the specifications for the work, including the special provisions thereof, contained numerous provisions limiting the employment of labor to this class only, that the contract was awarded to the plaintiff as the successful bidder, after a public advertisement and notice to contractors inviting sealed bids, and which notice had set forth in detail the approximate quantities of materials determined by the highway engineer to be used for the work and the methods of construction to be followed, that the work should be done in accordance therewith and in accordance with the plans and specifications prepared therefor by the engineer of the highway department of the State of Georgia and his assistants, that under the terms of the contract and the several documents constituting a part thereof, above referred to, the plaintiff was to construct what is known as a double surface treatment road according to the methods of construction specified in the contract, using materials in accordance with the provisions of the plan designated "typical section 8" "top soil base, coarse double surface treatment, " that the method of construction, but not the materials to be used, must be as described in section 45 of the standard specifications, that the designated plan referred to was not only a part of the contract but was part of the notice to contractors, that this was the basis upon which competitive sealed bids were invited and upon which the bids were submitted, that when the plaintiff submitted its bid for the performance of the work it examined the plans for specifications to ascertain if stone aggregate could be used, and finding from examination of the plan that stone aggregate could be used, the plaintiff based the bid which it submitted upon the use of stone aggregate to be obtained either from Stone Mountain, Lithonia or Camak, adjacent to the work, and involving a short haul with a low freight rate, that the plaintiff submitted its bid on the basis of $3.80 a ton for aggregate to be applied and used in the construction of the road in accordance with the provisions of section 45 of the standard specifications, that under the terms of the contract the plaintiff was entitled to use stone aggregate provided it was size 534, as shown by paragraph 100.23 of the general specifications, and was of the type, and had the physical properties, required in section 100.24 of the general specifications of the highway department of the State of Georgia of September 1, 1931, that during the progress of the work the plaintiff notified the State Highway engineer that it intended to use stone aggregate and indicated to him the place from which the plaintiff proposed to obtain the stone aggregate, that this was done so as to insure in advance that the stone aggregate met the provisions of the general specifications with reference to stone aggregate, that this action on the part of the plaintiff was in accordance with paragraph 100.01 of the standard specifications of the highway department, that the State highway engineer informed the plaintiff that the plaintiff must use slag aggregate, that the plaintiff thereupon, under date of March 28, 1933, informed the State highway engineer in writing that the plaintiff proposed to use stone aggregate, and that if slag aggregate was used the cost would be $1 a ton additional to the cost of stone aggregate, and that the plaintiff would expect the State highway department to reimburse it for the extra cost if slag aggregate were used in construction of the work, that the State highway engineer, after having announced that he would take the matter under consideration, notified the plaintiff that slag aggregate would have to be used, that the plaintiff com-pleted the work by using slag aggregate and the work was duly accepted by the State highway department, that the plaintiff had the right to use stone aggregate in the work, provided the plaintiff complied as to size and physical qualities with the specifications of the class of aggregate selected, and that under the contract the highway department did not have the right to designate the type of aggregate, but that the highway department had only the right, under the general specifications, to order a change in the materials to be used or to make changes in the plan or the contract provided the contractor was paid an additional cost as a result of such change, that the additional cost of furnishing slag aggregate in place of stone aggregate was the amount sued for. The plaintiff further alleged that aggregate, as used in reference to the construction of roads, is a general term to designate the solid material out of which the road is to be made, and which is bound into a solid mass either by cement, asphalt, tar, water or other binding materials, that stone aggregate is regarded as the premier road building material of the world, and has been in constant use for many centuries in the building of roads, and is today in more general use than any other kind of aggregate and when aggregate is specified, contractors generally consider such aggregate as being stone aggregate and not the lesser used materials of gravel and slag, unless the specifications designate an aggregate of a type other than stone, that in view of the fact that the purpose of the Federal government in appropriating money for the construction of this road was to give employment to unemployed in the State of Georgia, and that the use of aggregate produced in the State of Georgia which complied with the specifications would not only be permitted but would be desired so that the labor in this State might be employed in producing the aggregate needed for the work rather than labor in another state, that stone aggregate is a product of which there is an unlimited quantity of the highest grade and type in the State of Georgia, and that slag aggregate is a product which can not be obtained within the State of Georgia, but must be supplied from other states, the nearest of which is Alabama.
It was further alleged in the petition that the type of highway described in the plans and specifications, and notice to contractors, the plaintiff's proposal, and the contract entered into between the plaintiff and the defendant, called for a type of construction not theretofore used on the highways of this State and for which the defendant had not prepared or published general specifications.
There was attached to the petition a copy of the notice to contractors, and a copy of the...
To continue reading
Request your trial