Macomber v. State

• Decision Date: 25 April 1967
• Citation: 250 Cal.App.2d 391,58 Cal.Rptr. 393
• Court: California Court of Appeals Court of Appeals
• Parties: Fred S. MACOMBER, Plaintiff and Respondent, v. STATE of California, Defendant and Appellant. Civ. 23933.

Page 393

58 Cal.Rptr. 393

250 Cal.App.2d 391

Fred S. MACOMBER, Plaintiff and Respondent, v. STATE of California, Defendant and Appellant.

Civ. 23933.

Court of Appeal, First District, Division 2, California.

April 25, 1967.

Rehearing Denied May 25, 1967.

Hearing Denied June 21, 1967.

Thomas C. Lynch, Atty. Gen., Robert E. Murphy, Deputy Atty. Gen., San Francisco, for appellant.

Robert O. Wilhelm, Redwood City, for respondent.

TAYLOR, Associate Justice.

This is an appeal by the State of California from an adverse judgment rendered on a jury verdict in favor of plaintiff-general contractor's claim for additional work done in the remodeling of Chico State College (hereafter College). The State argues that there is no evidence to support the jury's implied finding that the State Architect committed gross error in rejecting plaintiff's claim; that the rule of substantial evidence is not applicable to a review of administrative proceedings; that plaintiff did not, in good faith, exhaust his administrative remedies; that the trial court erred in permitting plaintiff to amend the complaint; and that, in any case, plaintiff is not entitled to interest prior to judgment.

Viewing the record most favorably to the judgment, as we must, the following facts appear: Plaintiff, Fred S. Macomber, a general contractor, was the successful bidder on a $101,250 State contract to remodel the Administration Building of the College. The contract, dated May 22, 1961, contained the usual General Conditions, the pertinent portions of which are set forth below. ¹ The portion of the work here in issue is the manufacture and installation of a two-story spiral staircase in the College Administration Building. The structural steel subcontractor for the staircase was Robert R. LaMarr (hereafter LaMarr).

The State's plans and specifications (hereafter plans) for the staircase called for a circular spiral staircase with a radius of 7.2 feet to be specially manufactured to fit into the existing two-story rotunda of the Administration Building. The rotunda was wider on the first floor than on the second. The travertine treads of the staircase were to be suspended from a steel beam, known as a spiral box stringer (hereafter stringer).

The staircase was not supported by the building but was to be attached to the first floor by a pier and concrete column underneath the floor. The top of the staircase was to be bolted to the existing concrete beam of the second floor of the building. This concrete beam was not exposed but hidden behind a frieze of plaster. The plaster was 'furred,' meaning that it covered up the structural beams and filed in void space so as to suggest a rounded corner instead of the straight one produced by the beams. The plans indicated that the furred plaster on the second floor was 7/8 of an inch thick. Mr. Cameron, the State's job superintendent, would not permit LaMarr to make holes in the plaster to determine its actual thickness, as the State did not want the walls to be left open during the several months of construction.

LaMarr's shop drawings for the stringer were approved by the State before the stringer was manufactured. After the stringer was manufactured in LaMarr's shop in Redwood City, it was approved there by State Inspector Cook. The stringer, in two sections, arrived on the job site on October 11. In order to get the second floor section inside the building, it had to be cut in half.

When the installation began on October 13, immediate difficulties were encountered and Mr. Muller, a structural engineer for the State, was summoned from Sacramento. Plaintiff and Mr. Cameron were also present. The stringer was too short because the plaster over the concrete beam on the second floor was 3 3/4 inches thick instead of the 7/8 of an inch shown on the plans. Some of the treads were 5 inches underneath the second floor.

In addition, the entry for October 17 in the daily log book kept by Cameron read: 'It was determined that the difficulty in fitting spiral stair thru the opening in 2d floor at Rotunda was not due to discrepancies in fabrication of steel stringer but that the opening is smaller than assumed to be.'

Accordingly, it was determined that by shifting the anchorage of the staircase on the first floor, the entire staircase could be moved enough to clear the handrail where it passed by the second floor facia. Mr. Muller wrote up the details of the subsequently issued Change Order No. 10 authorizing the change of position of the first floor anchorage for an additional $559.46.

Mr. Brogunier, a structural engineer, made an engineering investigation of the staircase after installation at the request of LaMarr. He studied the shop drawings and plans, took precise measurements of the staircase and building, and ascertained that if the staircase had been constructed in accordance with the plans or shop drawings, it would not have fit the building. Mr. Brogunier also found that there was a variance of one inch between the center point of the rotunda on the first floor and the center point on the second floor. The supports for the staircase were based on the center line on the first floor. The differences between the two center points would cause problems if the stairway were constructed in accordance with the plans, which indicated the same center points for both floors. These discrepancies between the plans and actual field conditions could not be ascertained from the plans.

After the change of the anchorage was accomplished, a number of additional problems appeared. The spiral of the staircase became elliptical instead of circular and the staircase was thrown off the center line so that the second floor landing had to be changed. After the shift, the staircase did not rest properly on the first floor support columns. Mr. Cameron indicated that the staircase, as shifted, was not acceptable, and that further adjustments were required.

The additional work required was not covered by Change Order No. 10, but done by LaMarr pursuant to Cameron's oral instructions. Cameron, plaintiff, LaMarr, Mr. Dwyer, the designer of the staircase, as well as a representative of the College, discussed various solutions to the problems presented. On December 13, Mr. Dwyer again visited the site and was informed that LaMarr was considering the submission of a claim for the additional work required.

Since the first floor columns could not be moved, it was determined, with Mr. Cameron's approval, that the stringer could be welded and spliced. As a result of the splicing, some parts of the spiral were flattened and the original risers no longer fit. New ones had to be made to keep the distance between the risers required by the plans. The welds then had to be made smooth to provide the neat appearance required by Mr. Dwyer.

Finally, the staircase was accepted by the State. Plaintiff, in accordance with the General Conditions, timely filed his claim for $13,673.98. The claim was rejected by the State Architect, then reviewed and rejected by the State Board of Control, and this action ensued.

The State does not question the general rule that a contractor who, acting reasonably, is misled by incorrect plans and specifications and who, as a result, submits a bid which is lower than he would otherwise have made, may recover in a contract action for extra work necessitated because of the incorrect plans and specifications (Coleman Engineering Co., Inc. v. North American Aviation, Inc., 65 A.C. 433, 441, 55 Cal.Rptr. 1, 420 P.2d 713; Souza & McCue Constr. Co. v. Superior Court, 57 Cal.2d 508, 510, 20 Cal.Rptr. 634, 370 P.2d 338). Also, the State concedes that its plans and specifications were incorrect. The chief argument on appeal is that under Paragraph 51 of the General Conditions (set forth in footnote 1 above), the decision of the architect in rejecting plaintiff's claim is conclusive in the absence of fraud or gross error (American-Hawaiian Eng. etc. Co. v. Butler, 165 Cal. 497, 504, 133 P. 280; Hagginwood Sanitary Dist. v. Downer Corp., 179 Cal.App.2d 756, 3 Cal.Rptr. 873) and that the evidence here is not sufficient to indicate the existence of such error.

The gross error concept is not clearly defined but is generally equated with fraud, constructive fraud, bad faith or a failure to exercise honest judgment (A Teichert & Son, Inc. v. State of Cal., 238 Cal.App.2d 736, 754, 48 Cal.Rptr. 225; American-Hawaiian Eng. etc. Co. v. Butler, supra; C. J. Wood, Inc. v. Sequoia High School Dist., 199 Cal.App.2d 433, 18 Cal.Rptr. 647; Connell v. Higgins, 170 Cal. 541, 150 P. 769; California Sugar etc. Agency v. Penoyar, 167 Cal. 274, 139 P. 671). Fraud in this connection has a broader connotation than is ordinarily implied. In addition to its ordinary significance, in construction contracts it includes arbitrary action and gross mistake (13 Am.Jur.2d, Building and Construction Contracts, § 34; Restatement of the Law, Contracts, § 303, subd. (f).) The underlying rationale of this concept of fraud is that in determinations under this type of contract, the high point in the architect's practice of his profession lies in those instances when, in order to do justice to the contractor, he has to oppose the desire of his employer. He occupies a position of trust and confidence. When he acts under a contract as the official interpreter of its conditions and the judge of its performance, he should favor neither side, but exercise impartial judgment (Terminal Construction Corp. v. Bergen County, etc. (1955) 18 N.J. 294, 113 A.2d 787, 799). We turn then to the question of whether there was any substantial ² evidence to support the jury's implied finding that the architect was guilty of gross error in rejecting plaintiff's claim.

Our summary of the facts demonstrates that there was ample evidence to support the verdict. The existence of the errors in the plans concerning the thickness of the plaster and center points was...