Mullinax Engineering Co. v. Platte Valley Const. Co., 85-68.

Decision Date24 June 1969
Docket NumberNo. 85-68.,85-68.
Citation412 F.2d 553
PartiesMULLINAX ENGINEERING CO., a Wyoming Corporation, Appellant, v. PLATTE VALLEY CONSTRUCTION CO., a Partnership, and Jerome Niedfeldt and John Niedfeldt, Partners, Associated and in Business under the Common Name and Style of Platte Valley Construction Co., Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Lawrence A. Yonkee, Sheridan, Wyo. (Austin T. Redle, of Redle, Yonkee & Redle, Sheridan, Wyo., on the brief) for appellant.

R. R. Bostwick, of Murane, Bostwick, McDaniel & Scott, Casper, Wyo., for appellees.

Before BREITENSTEIN, HILL and HOLLOWAY, Circuit Judges.

HILL, Circuit Judge.

In this diversity suit Mullinax Engineering Company, a Wyoming corporation, appeals from a decision of the district court denying its claim for damages allegedly suffered as a result of being delayed in performing under a subcontract with defendant-appellee Platte Valley Construction Company, a Nebraska partnership.

In April, 1964, Platte Valley was awarded a contract to construct seven miles of interstate highway in Johnson County, Wyoming. The contract provided for grading and surfacing, construction of overpasses and interchanges, installation of culverts, and various incidental items. Thereafter, on August 6, 1964, Mullinax and Platte Valley executed a subcontract which required Mullinax to furnish all the materials, labor, tools and equipment necessary to accomplish the subbasing and asphaltic surfacing of the highway. Platte Valley would thus be responsible for the grading and dirt moving while Mullinax would supply the gravel base and asphalt cover that would finish the project. The construction would be conducted in successive steps beginning with the grading by Platte Valley. Mullinax would then place a layer of gravel subbase over the grade, cover the gravel with a cement treated base, and complete the surface with a layer of asphalt.

Apparently in recognition of the fact that the subcontractor should begin as soon as the prime contractor completed a significant portion of the initial grading, the subcontract submitted by Platte Valley contained a statement that "Work shall commence on placing subbase material as soon as the prime contractor has sufficient portion of the grade ready so that the subcontractor can continue his operations without delay." When Mullinax received the subcontract, it added the proviso that "It is hereby agreed that this date will be not later than May 15, 1965." Both parties then signed the subcontract as modified.

Platte Valley began grading the area in June, 1964. This work continued through the summer and early winter until the construction season in Wyoming ended. Upon the return of warmer weather in April, 1965, Platte Valley resumed work, completing enough of the grading to allow Mullinax to commence its operations on May 24, 1965. Mullinax worked through May 28 and then was forced to discontinue for lack of sufficient grade to warrant continued operation. Intermittent resumption and discontinuance of operations occurred, through June 15, with Mullinax being delayed a total of eighteen working days between May 15 and June 15. During these days of delay Mullinax had men and equipment standing idly by awaiting Platte Valley's progress. The respective parties did, however, continue their operations and the project was completed later in the year.

Contending that Platte Valley was in breach of its contractual obligation to have the grading sufficiently completed to allow Mullinax to begin on May 15 and continue uninterrupted thereafter, Mullinax sought to recover the rental value of the idle equipment as damages for the delay. The district court, in its findings of fact,1 determined that the provision in the subcontract requiring Platte Valley to make the site ready by May 15, was qualified by the provision that "Work shall commence on placing subbase material as soon as the prime contractor has sufficient portion of the grade ready * * *." Construing the two provisions together, the court held that May 15 "was not an absolute limitation on the starting time, and that it was subject to reasonableness and favorable weather conditions." The court then concluded that adverse weather conditions and unexpected difficulty in compacting the grading surface were the causes of the delays and Platte Valley, having no control over these matters, did not breach the contract.

The record does not clearly indicate whether the contract was executed in Wyoming or Nebraska. However, because this is a diversity...

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    ...of laws principles and its choice of law rules in adjudicating the actions that come before it. See Mullinax Eng. Co. v. Platte Valley Const. Co., 412 F.2d 553, 555 (10th Cir. 1969). In determining the force and effect of the provisions of a contract, Utah courts have applied the lex loci c......
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