N. B. Harty General Contractors, Inc. v. West Plains Bridge and Grading Co., Inc., 11397

• Decision Date: 18 April 1980
• Docket Number: No. 11397,11397
• Citation: 598 S.W.2d 194
• Parties: N. B. HARTY GENERAL CONTRACTORS, INC., Plaintiff-Appellant, v. WEST PLAINS BRIDGE AND GRADING COMPANY, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 194

598 S.W.2d 194

N. B. HARTY GENERAL CONTRACTORS, INC., Plaintiff-Appellant, v. WEST PLAINS BRIDGE AND GRADING COMPANY, INC., Defendant-Respondent.

No. 11397.

Missouri Court of Appeals, Southern District, Division One.

April 18, 1980.

Joe Welborn, Briney, Welborn & Spain, Bloomfield, for plaintiff-appellant.

Harold L. Henry, Henry, Henry & Henry, West Plains, for defendant-respondent.

PREWITT, Judge.

Plaintiff appeals from an adverse judgment in this jury waived case. Plaintiff and defendant entered into a contract and plaintiff contends that defendant refused to pay it the full amount the contract required. The trial court's interpretation of the contract was adverse to plaintiff and judgment was entered in favor of defendant.

The defendant submitted a successful bid and thereafter contracted with the Missouri Highway Department to build a bridge. This construction necessitated excavation of dirt and rock. Plaintiff and defendant entered into a written "Subcontract Agreement" by which plaintiff was to do the drilling and blasting of the "Class C excavation" on the project. Defendant was to remove the material after the blasting. The subcontract referred to plaintiff as "Harty" and defendant as "West Plains". After referring to defendant's contract with the Highway Department, the subcontract stated:

"Now, therefore, the said WEST PLAINS does hereby sublet to said HARTY the following items of the contract between the State and WEST PLAINS at the unit prices stated in the following schedule;

                   NO.              DESCRIPTION            QUANTITY    UNIT PRICE    AMOUNT
                ---------  -----------------------------  -----------  ----------  ----------
                203 20.00  Class C Excavation (Drilling)  20.014 C Y     @ $1.63   $32,622.82
                                                     O C
                

"(Drilling)" was inserted in his handwriting by Oakley Carte, defendant's president, before the agreement was sent to plaintiff. It is his initials that appear immediately under that word. The contract between plaintiff and defendant makes no other reference to "Class C Excavation".

The agreement between defendant and the Highway Department was apparently not introduced in evidence but testimony established that it contained two classifications of excavation work. "Class A" excavation is dirt removal and "Class C" excavation is removal of rock larger than six inches from any one point to another. In its bid documents and in defendant's contract with it, the Highway Department estimated that there would be 20,014 cubic yards of Class C excavation on the project. The contract between plaintiff and defendant also incorporated this figure but they agree that it was an estimate of the volume of rock and they knew that there could be "overruns and underruns".

Defendant excavated with earth moving equipment without drilling and blasting until it reached "solid rock" at which time plaintiff commenced drilling and blasting. Plaintiff drilled and blasted toward the removal of 10,194 cubic yards of solid rock. In defendant's removal by earth moving equipment "percentage rock" was discovered. It is described as a mixture of dirt and rock that is more difficult to remove than dirt. Percentage rock could be drilled and blasted but here it was not necessary to do so. Apparently the discovery of percentage rock was not contemplated and some evidence indicates it was unusual. Plaintiff's president stated that he had been in the drilling and blasting business for 20 years and this was the second time he had ever encountered percentage rock. The district construction engineer for the Highway Department stated that its estimate of 20,014 cubic yards of Class C excavation did not include percentage rock, but once you "percentage it" it becomes a part of Class C excavation.

For the purposes of payment to the defendant, the Highway Department applied the rock portion of the percentage rock to Class C excavation and the dirt portion to Class A. On this project there were three different areas of percentage rock. One was classified as 30% rock and 70% dirt, one 50% rock and 50% dirt and one 60% rock and 40% dirt. Defendant was paid for 28,388 cubic yards of Class C excavation. That consisted of 10,194 cubic yards of solid rock which was drilled and blasted by plaintiff, and for which plaintiff was paid, and 18,194 cubic yards which was that portion of percentage rock determined by the Highway Department to be rock. The dispute is whether plaintiff should be paid for this latter 18,194 cubic yards of rock. During the job no protest was made by plaintiff that it should have been allowed to remove the percentage rock. The dispute as to the payment arose after the job was completed.

All three of plaintiff's points relied on contend that plaintiff is entitled to recover because he was prevented from drilling and blasting the percentage rock. The trial court found that the contract between plaintiff and defendant did not contemplate that plaintiff would be paid for excavation that did not require drilling and blasting. This...