Norvell v. James

• Decision Date: 04 December 1950
• Docket Number: No. 4-9328,4-9328
• Citation: Norvell v. James, 234 S.W.2d 378, 217 Ark. 932 (Ark. 1950)
• Parties: NORVELL et al. v. JAMES.
• Court: Arkansas Supreme Court

Page 378

234 S.W.2d 378

217 Ark. 932

NORVELL et al. v. JAMES.

No. 4-9328.

Supreme Court of Arkansas.

Dec. 4, 1950.

John Sherrill and Thomas J. Bonner, Little Rock, for appellants.

Wright, Harrison, Lindsey & Upton and Edward Lester, Little Rock, for appellee.

DUNAWAY, Justice.

The Commissioners of the Little Rock Municipal Water Works appeal from a judgment in favor of appellee James, rendered by the Pulaski Circuit Court. The cause was submitted to the court sitting as a jury.

James brought this action against appellants to recover a balance alleged to be due under a written contract entered into on April 24, 1946. James had contracted with appellants to do certain work in laying water mains from the filter plant of the Water Works down to and within the business district of Little Rock. Beginning at Second and Pulaski Streets and continuing east into and through parts of the downtown business district of Little Rock, the work necessitated cutting the pavement and digging trenches in forty-one blocks of the city streets.

Upon completion of the work the Commissioners withheld a part of the contract sum of $122,074.37 claimed by James to be due him. Several disputed items were involved in the amount initially withheld, but we are concerned with only one. The judgment now appealed from arises out of a difference between the parties over the manner in which appellees refilled the trenches and maintained this temporary refill.

In his complaint James alleged that he had 'fully complied with the contract and completed the work contemplated thereunder' and that the sum of $1,726.11 due him was being wrongfully withheld. This represented the cost of work done by the City of Little Rock in applying cut-back or hot asphalt to the surfaces of the trenches which appellee had caused to be filled with clay gravel.

Appellants' defense to the suit was that James had not complied with the terms of his contract, in that he had not filled the trenches with macadam in accordance with required specifications; and that, as authorized by the contract, they had procured the temporary resurfacing work by the City as the cheapest means of remedying James' default in performance. The cost of this work they claimed to be entitled to deduct from the total contract price of the project.

The trial court made this finding of fact in rendering judgment for the plaintiff: 'The Court finds that the trenches dug by the plaintiff were not paved with broken stone macadam as required by the contract but that they were paved with gravel, which the Court finds to be a substantial compliance with the terms of the contract, and therefore plaintiff is entitled to recover $1,726.11 which defendant incurred in applying cut-back to the trenches.'

In their motion for new trial, and in their argument here, appellants urge that the trial court erred (1) in finding that appellee had substantially complied with the contract and (2) in rendering judgment for appellee when the court found that the trenches 'were not paved with broken stone macadam as required by the contract'.

The relevant provisions of the contract concerning the temporary refilling of trenches by the contractor are quoted: 'Paragraph 28.4. The attention of bidders is called to the specifications covering the maintenance of trenches and temporary repaving of broken stone macadam to be replaced and maintained by the Contractor; however, the bidder shall have the option of maintaining trenches by the use of suitable wooden platforms, provided that such platforms are properly and adequately maintained so as to be in nowise an obstruction to traffic at all times. In the event that the timber platforms are not properly and adequately maintained this option will be withdrawn and the Contractor will be required to place the broken stone macadam and maintain same in all trenches as provided by the specifications.'

'Paragraph 59.3. Where it is important that the surface of the backfill be made safe for vehicular tranffic as soon as possible, or where a permanent pavement is to be placed within a short time, the upper twelve (12"') inches of backfill shall be of approved moist material, thoroughly compacted in four (4"') inch layers by temping and shall be brought to the required surface grade.'

'Paragraph 59.10. Temporary paving of all ditches in traveled streets shall be done by the Contractor as a part of this contract and without additional compensation therefor. Temporary paving shall consist of a broken stone macadam wearing surface or of suitable wooden platforms.'

The provision of the contract under which the Commissioners proceeded to have the resurfacing work done themselves and claim the right to deduct the cost is as follows: 'Paragraph 32.1. If the Contractor shall neglect to prosecute the work properly or fail to perform any provisions of the contract, the Owner, after three days' written notice to the Contractor may without prejudice to any other right or remedy he may have, make good such deficiencies and may deduct the cost thereof from any payments then or thereafter due the Contractor.'

The proof shows that along approximately three blocks the surface of the trenches was covered with loose crushed stone. This proved unsatisfactory, as the loose stone scattered over the street when cars drove over it, and the rest of the trenches were refilled with clay gravel which had been removed in...