Mississippi State Highway Commission v. Dixie Contractors, Inc.

• Decision Date: 10 October 1979
• Docket Number: No. 51465,51465
• Citation: 375 So.2d 1202
• Parties: MISSISSIPPI STATE HIGHWAY COMMISSION v. DIXIE CONTRACTORS, INC.
• Court: Mississippi Supreme Court

Page 1202

375 So.2d 1202

MISSISSIPPI STATE HIGHWAY COMMISSION v. DIXIE CONTRACTORS, INC.

No. 51465.

Supreme Court of Mississippi.

Oct. 10, 1979.

A. F. Summer, Atty. Gen. by Frank E. Shanahan, Jr., Asst. Atty. Gen., Shell, Buford, Bufkin, Callicutt & Perry, K. Hayes Callicutt, Jackson, for appellant.

Cox & Dunn, Vardaman S. Dunn, Jackson, for appellee.

Before PATTERSON, SUGG and WALKER, JJ.

PATTERSON, Chief Justice, for the Court:

Dixie Contractors, Inc. brought suit in the Chancery Court of the First Judicial District of Hinds County for additional compensation allegedly owing by the highway commission on a contract known as Federal Aid Project # I-10-1(15)16. The case went to trial at the April 1976 term of court, and on December 29, 1978, the chancellor rendered judgment against the highway commission in the sum of $359,763.96, plus interest at the rate of 8% From the date of the final decree until payment. This appeal by the highway commission followed.

The issue raised by the complaint concerned the proper measurement for hauling materials in performing the contract. Dixie's bid fixed unit prices for various materials, a specified dollar amount being offered per cubic yard. Dixie's case requires interpretation of the contract to determine the aggregate number of cubic units which had been hauled in a manner entitling it to additional payment under the contract.

Blueprints illustrating engineering cross-sections of segments of the construction of this interstate highway in Hancock and Harrison Counties beginning at the Jordan River were introduced into evidence. The project begins in a low-lying, sandy area, and progresses into more hilly terrain. Construction of the four-lane highway required both cutting into the hills ("cut sections") and filling up the depressed areas ("fill-sections") to create parallel lanes for travel. The first 0.9 miles of the project, referred to as B.O.P. ("Beginning of Project") to Station 870 k 00, is depicted in Plan Sheet 2-D, the blueprint designated as Exhibit D-1. The remaining 11.4-mile segment of the project, referred to as Station 870 k 00 to E.O.P. ("End of Project"), is depicted in Plan Sheet 2-E, the blueprint designated as General Exhibit 5.

As can be seen from the plans, various types of material encountered in the excavation required for building the highway received different classifications (e.g. "muck," "plating material"). Each classification carries with it a "pay item" in the contract. The "pay item" states the amount to be paid per cubic yard for the classification in question. Excavation of certain classes of materials pays more than other classes: Unclassified excavation (F.M.) pays only 62cents per cubic yard; whereas unclassified excavation (plating material) (F.P.M.) pays $1.45 per cubic yard under Dixie's bid. Thus classification of materials bears directly upon the measure of payment under the terms of the contract.

The highway commission drafted the entire contract in question and invited unit bids on it. The contract includes a number of documents proposals, specifications, plans (blueprints), etc. all of which were admitted into evidence by stipulation. The basic handbook and guide to the construction under the contract appears as Exhibit 3 in the record, a technical book entitled "Mississippi Standard Specifications for Road & Bridge Construction" (1956 Ed.). Section 5.04 of the specifications defines the constituents of the contract between the commission and any contractor doing road work under a bid. It states:

The specifications, the plans, special provisions, and all supplementary documents are essential parts of the contract, and a requirement occurring in one is as binding as though occurring in all. They are intended to be complementary, to describe and provide for complete work. . . . Plans, generally, shall govern over specifications, and special provisions shall govern over both plans and specifications. (emphasis supplied).

A vital aspect of the present dispute concerns the existence in the contract between Dixie and the highway commission of a special provision, which, under the language quoted above, would "control" over all other parts of the contract, including the plans (blueprints). This Special Provision, No. 1642, must be read along with blueprint 2-E, focusing upon three block paragraphs of draftsmen's notes appearing beneath and to the right of the words "ONE-HALF FILL SECTION." These notes refer to "variable depth unclassified excavation (stripping top soil or unstable material) to be removed (pay item 23-a)" and go on to indicate that this type of excavation "shall be stockpiled for plating slopes." "Plating" describes material that is spread in a layer on the embankment of the "cut section" as depicted in the drawing on the lower left side of plan 2-E.

Article 401-23.07 in Special Provision 1642 defines "unclassified excavation (plating material)" as any material designated on the plans by the engineer as "stripping or unstable material" other than "muck." Dixie contends the term therefore includes all material stripped from beneath the load-bearing area of fill sections throughout the project to the extent that material had been removed by Dixie, stockpiled, and later hauled a second time for construction of fill section embankments beyond the 2:1 slope. In support, Dixie contends that the plans use the apparently mandatory phrasing "to be removed." Dixie concedes the purpose of removal, at least in part, is to...