Meaux v. Southern Const. Corp.

• Decision Date: 03 December 1963
• Docket Number: No. 973,973
• Parties: Nelson MEAUX, Plaintiff and Appellee, v. SOUTHERN CONSTRUCTION CORPORATION et al., Defendants and Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 156

159 So.2d 156

Nelson MEAUX, Plaintiff and Appellee, v. SOUTHERN CONSTRUCTION CORPORATION et al., Defendants and Appellants.

No. 973.

Court of Appeal of Louisiana, Third Circuit.

Dec. 3, 1963.

Rehearing Denied Jan. 14, 1964.

Patin & Patin, by John A. Patin, Lake Charles, Davidson, Meaux, Onebane & Donohoe, by Joseph Onebane, Lafayette, for defendants-appellants.

Russell T. Tritico, Lake Charles, for plaintiff-appellee.

Before SAVOY, CULPEPPER and HOOD, JJ.

HOOD, Judge.

Plaintiff, Nelson Meaux, instituted this suit against Southern Construction Corporation and Trinity Universal Insurance Company, the latter being the surety on a performance bond furnished by Southern, for the balance alleged to be due Meaux under a painting contract entered into between him and Southern, and for 'extra work' allegedly performed by Meaux in connection with that contract. Plaintiff contends that he is entitled to recover $7,350.24 as the balance due on the painting contract, and the sum of $6,542.25 for 'extra work' which he performed for the defendant.

Southern filed an answer and a reconventional demand in which it admitted that it owes plaintiff $7,182.01 as the balance due on the painting contract, and the additional sum of $1,874.25 for 'extra work' performed by plaintiff in connection therewith, but it denies that it is indebted to plaintiff for any other amounts. Southern further, as plaintiff-in-reconvention, alleges that it is entitled to recover from Meaux the sum of $3,650.00 as liquidated damages for Meaux's delay in performing the painting contract, and the additional sum of $5,622.50 for moneys advanced and paid to Meaux in excess of the amounts due him on another contract relating to the construction of a housing project in Opelousas, Louisiana.

Trinity Universal Insurance Company filed an answer and a third-party petition in which it denies liability to plaintiff, but alternatively alleges that in the event judgment is rendered against Trinity, then the latter is entitled to recover the same amount from Southern and from Charles R. Grein and George L. Grein, who are indemnitors on the performance bond which Trinity had furnished. Southern Construction Corporation, Charles R. Grein and George L. Grein are named as third-party defendants in that action.

After trial on the merits, the trial judge concluded that Meaux was entitled to recover from Southern (or its surety) the total sum of $9,056.26, of which amount $7,182.01 represented the balance due on the painting contract and $1,874.25 represented the amount determined to be due for 'extra work' performed in connection with that contract. The trial judge further concluded that Southern was entitled to recover $4,491.50 from Meaux as the amount overpaid the latter on the Opelousas Project contract, but that Southern was not entitled to recover liquidated damages for plaintiff's delay in completing the painting contract on which the present suit is based. Judgment was rendered, therefore, in favor of Meaux against Trinity for $4,564.76, being the difference between the two conflicting claims. Judgment further was rendered for the same amount in favor of Trinity and against Southern Construction Corporation, Charles R. Grein and George L. Grein, in solido. An appeal from that judgment was taken by Southern, Charles R. Grein and George L. Grein, the appellants contending primarily that the trial court erred in disallowing Southern's reconventional demand of $3,650.00 as liquidated damages. Plaintiff has answered this appeal contending that the trial judge erred in failing to allow the full amount claimed by him as 'extra work' on the Lake Charles project.

All parties apparently agree with the conclusion reached by the trial court that there is a balance of $7,182.01 due Meaux under the original contract. They also agree that Southern overpaid Meaux the sum of $4,491.50 on the Opelousas project contract, and that Southern is entitled to recover that amount from Meaux or to off-set or credit it against the claim Meaux has against Southern.

The only questions presented on this appeal, therefore, are: (1) whether Southern, as plaintiff-in-reconvention, is entitled to recover from Meaux the liquidated damages claimed by it because of Meaux's failure to complete the performance of his painting contract within the time agreed upon in such contract, and (2) whether plaintiff is entitled to recover more than $1,874.25 for 'extra work' allegedly performed by him for Southern in connection with the Lake Charles project and, if so, how much should be recover.

The evidence shows that in 1960 Southern Construction Corporation entered into a contract with Lake Charles Housing Authority, under the terms of which Southern agreed to construct 70 low-rent housing units for the Housing Authority. Southern then entered into a subcontract with plaintiff Meaux, in which contract Meaux agreed to furnish all of the labor required for painting these units.

Article VI of the subcontract entered into between Meaux and Southern, relating to the Lake Charles project, reads as follows:

'The Subcontractor agrees that the work under this contract is to be begun and provided for immediately and carried on promptly; and the Subcontractor agrees to complete the work covered by his contract in such time and in such manner that The Contractor may complete all of the work included in its contract with the Owner on or before 1st day of Aug., 1961. It being agreed that work will be carried on as required by Contractor, promptly and efficiently and without delaying other branches of work; and if necessary, certain parts of the work shall be prosecuted in preference to others. In order to secure the execution of this work at, and within, the time specified, it is hereby distinctly agreed that damages arising from the nonfulfillment of this contract as regards time, shall be deducted from the contract price as liquidated damages and not in the nature of a penalty and shall be Fifty Dollars ($50.00) per calendar day.

'Should the Subcontractor be delayed in the prosecution or completion of the work by the act, neglect or default of the Owner, the Contractor, or by damage caused by fire or other casualty for which the Subcontractor is not responsible or by the combined action of the workmen in no way caused by or resulting from default or collusion on the part of the Subcontractor, then the time herein fixed for the completion of the work shall be extended the number of days that said Subcontractor has been thus delayed But no allowance or extension shall be made unless a claim therefor is presented in writing to the Contractor within forty-eight (48) hours of the occurrence of such delay. No additional compensation in connection with extension of time will be allowed unless specific agreement is made at the time such extension is granted.' (Emphasis added.)

Although Meaux agreed to complete the work covered by his contract in such time as to enable Southern to complete all of its work before August 1, 1961, the evidence shows that Meaux did not complete the work covered by the subcontract until October 12, 1961. Southern, therefore, as plaintiff-in-reconvention, seeks to recover liquidated damages against Meaux at the rate of $50.00 per day during this period of delay. Although it contends that the delay extended over a period of 73 days, making the stipulated damages amount to $3,650.00, we compute the delay to be only 72 days, and accordingly the maximum stipulated damages would be $3,600.00. The trial judge, however, disallowed defendants' claim for liquidated damages completely, and assigned as his reason for doing so that 'Southern has failed to prove that the late finishing date was attributable to plaintiff.'

We think it is immaterial whether the delays were or were not attributable to plaintiff Meaux, because the evidence shows that Meaux did not at anytime present a written claim to the contractor Southern for an extension of time because of such delays. The contract specifically provides that 'no allowance or extension shall be made unless a claim therefor is presented in writing to the Contractor within forty-eight (48) hours of the occurrence of such delay.'

It is well settled in Louisiana law that legal agreements have the effect of law as between the parties, that the courts are bound to give legal effect to contracts according to the true intent of the parties, and that the intent is to be determined by the words of the contract when these words are clear and explicit and lead to no absurd consequences. LSA-Civil Code, Article 1945; Pothier v. Barber Laboratories, 227 La. 357, 79 So.2d 481; Gordon v. Unity Life Ins. Co., 215 La. 25, 39 So.2d 812; Oil Field Supply & Scrap Material Co. v. Gifford Hill & Co., 204 La. 929, 16 So.2d 483.

In Equitable Real Estate Co. v. National Surety Co., 133 La. 448, 63 So. 104, the contractors failed to complete the construction of a building within the time agreed upon. They resisted a claim for demurrage, however, on the ground that the delay was attributable to the architect rather than to the contractors. The written contract involved there contained the following provision:

'Art. 8. Should the contractor be delayed in the prosecution and completion of the work, by the act, neglect, or default of the owner, or the architect, * * * then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost, * * * which extended period shall be determined by the architect; but No such allowance shall be made unless a claim therefor is presented, in writing, to the architect, within forty-eight hours of the occurrence of the delay.' (Emphasis added.)

In holding that the contractors were liable for the delay penalties provided in the contract, our Supreme Court said:

'It is admitted that no written claim for an extension of time was made during the execution of the contract; but it is...