Peter Salvucci & Sons, Inc. v. State, 5900

• Court: Supreme Court of New Hampshire
• Writing for the Court: LAMPRON
• Citation: 110 N.H. 136,268 A.2d 899
• Parties: PETER SALVUCCI & SONS, INC. v. STATE.
• Docket Number: No. 5900,5900
• Decision Date: 27 February 1970

Page 899

268 A.2d 899

110 N.H. 136

PETER SALVUCCI & SONS, INC. v. STATE.

No. 5900.

Supreme Court of New Hampshire.

Feb. 27, 1970.

Rehearing Denied March 31, 1970.

Devine, Millimet, McDonough, Stahl & Branch and Robert A. Backus, Manchester (Joseph A. Millimet, Manchester, orally), for plaintiff.

Alexander J. Kalinski, Manchester, special counsel, for the State.

LAMPRON, Justice.

Action by plaintiff under RSA 491:8 to recover damages from the State for a breach of contract involving the construction of a part of Interstate Route 93 in Franconia. Trial before a master (Charles J. Flynn). A view of the different sites involved was taken on July 5, 1966. Evidence was presented before the master on various days between July 11 and September 23, 1966. The master's report included 60 specific findings and rulings made after a consideration of plaintiff's 113 requests for findings and rulings and of 31 such requests submitted by the defendant. The parties also filed memoranda of law and written arguments. The master's recommendation that the plaintiff be awarded the sum of $111,114.41 was accepted by the Superior Court (Bownes, J.) and judgment for plaintiff entered in that amount plus interest and costs in accordance with a motion by plaintiff.

Defendant excepted to the denial of its motion to dismiss made at the end of plaintiff's case and at the close of all the evidence. Defendant also excepted to the denial of its motions to set aside the master's report and for a continuance of plaintiff's motion for judgment on the report until the transcript of the evidence was available to the defendant. These exceptions were reserved and transferred by the Superior Court.

On January 13, 1958, Peter Salvucci and Sons, Inc., a Massachusetts corporation, entered into a contract with the State of New Hampshire, for the bid price of $837,267.63, to construct 7200 feet of highway in the town of Franconia running from Station 1 to Station 72. This project (P-3293-A) will be referred to as 'Job A' or 'Job I.' On April 29, 1958, the same parties entered into an agreement for the construction of 10,600 feet of highway adjoining the former and running from Stations 72 to 178. This project (P-3293-B) will be called 'Job B' or 'Job 2.' The completion date for both of these projects was October 15, 1959.

The essentials of plaintiff's claims are that in soliciting the bids for Job A the State represented to it that the work could be performed with materials obtained by widening the slopes of the highways; that free gravel and borrow could be obtained from the National Forest lands through which the highways were to be built; that the only cost to the contractor would be the cost of replanting the areas from which such materials were taken at a cost of approximately $50 per acre.

Plaintiff alleged 'that when it undertook to do the work in the manner represented to it by the State, it was denied the right to widen the slopes and the right to obtain free gravel and borrow from the National Forest land so that it had to obtain large quantities of gravel and borrow from other locations.

'The State's failure to make free gravel and borrow available, as represented, not only required that the Plaintiff purchase large quantities of material, which it was entitled to receive without charge, but also put the Plaintiff to great additional expense for the cost of digging and hauling the same, instead of being able to construct the projects as anticipated by the use of much more economical machinery and equipment.'

The plaintiff further alleged that the State, subsequent to the awarding of these two contracts, reaffirmed its promise to make free borrow and gravel available to the plaintiff in quantities and qualities sufficient to satisfy the 340,000 cubic yards required perform Job A at places and times necessary for its performance.

The plaintiff alleged that as a result of the breach of its contract by the State, both in its original misrepresentations and in its subsequent promises, it was put to great additional expense and suffered severe damages in its performance, not only of Job A, but also of Job B. These breaches it is alleged caused the plaintiff direct extra expenses in the amount of $225,726.23 and also overall intangible inefficiencies on both jobs which together resulted in a net overall loss to the plaintiff of $454,614.93.

The master made the following findings:

'1. The plaintiff Salvucci obtained its first road construction contract from the Highway Department in 1949 and worked almost continuously in New Hampshire from 1954 until the completion of Job A on October 20, 1959. During this period the plaintiff did a considerable amount of road work for the State and built about 35-40 miles of roads in New Hampshire. The plaintiff was, in general, familiar with the policies, practices and procedures of the Highway Department applying to road construction jobs and the handling of the clauses that appear in highway construction contracts.

'2. On or about December 2, 1957, the State advertised for bids for the construction of a hot asphaltic concrete highway section * * * (Job A) * * * a portion of which passed through the White Mountain National Forest * * *. This was the first time that either the plaintiff or the defendant had been involved in the construction of a section of such a major highway through a portion of the White Mountain National Forest. A peculiar characteristic of this road was that it involved a considerable amount of more earth moving in the way of excavation and fill than is usually involved in the ordinary highway job.

'3. As the Highway Department usually puts out a 6 month projection of pending projects, the plaintiff was aware of this Franconia job a few months prior to the advertising of bids on December 2, 1957. The plaintiff's president, Peter Salvucci, had visited the site in question in October and November of 1957. On these occasions, he walked, where feasible, over the area where the road was to be constructed and looked over the area for material to do the job. There was no snow on the ground.

'4. After December 2, 1957, when the Highway Department sent out invitations to bid on Job A, the plaintiff obtained copies of the plans, profiles, test borings and soils data applicable to this job.

'5. With a view to making a bid on Job A the plaintiff's key personnel * * * inspected the job site around the middle of December 1957. At this time, there was some snow on the ground. Although they could not walk the base line of the road, these men, all experienced road builders, could get within a hundred feet or so of it and had a good idea as to the center line from observing stakes. Peter Salvucci who had previously toured the job area, showed his brother Ralph, (vice-president and general superintendent), and Eugene Kalafarski (plaintiff's project engineer) the general layout and indicated where material might be obtained. Louis Thompson (plaintiff's superintendent) who lived in the area, was also quite familiar with the job locale. Ralph scaled off an area between Stations 10-40 * * * and satisfied himself that there was sufficient material in this area in quantity to do Job A if the material were available.

'6. After the aforesaid inspection, Ralph Salvucci had Eugene Kalafarski, who was an experienced engineer and knew what was needed in the way of material for this job, check on the boring and soils data of the Highway Department. Based on the information given to him by Mr. Kalafarski, and after studying the Plans, the Materials Report and Soils Profile, and after a discussion with Mr. Kalafarski and Louis Thompson, Ralph became satisfied that the material for Job A, if available, was present in quality, as well as in quantity, both from the standpoint of borrow and gravel, in an area between Stations 10 and 40 in the National Forest land * * *

'8. The plaintiff was familiar with the General specifications * * * and the special provisions of the Inviation to bid on Job A * * *, including the Materials Report. Embodied in the Invitation to Bid * * * in the section containing the National Forest Special Provisions were the following paragraphs * * *:

'Materials necessary for the completion of the project will be obtained, if available, by widening the slopes.

'No borrow pit shall be opened up within or outside the right of way to secure materials needed for the construction of the highway, nor shall any excavation be done beyond the work limits as definitely located by the plans, except as additional permission is granted by the Forest Supervisor.'

'9. There appeared to be a conflict between the above two paragraphs. The first paragraph, which was in accord with the practice in prior jobs, stated that materials could be obtained, if available, by widening slopes. The second paragraph, which was peculiar to this White Mountain National Forest job, appeared to be somewhat contradictory. The first paragraph indicated that materials could be obtained, if available, by widening the slopes, whereas the second paragraph stated that no borrow pit shall be opened up within or outside the right of way nor shall any excavation be done beyond the work limits as located by the plans except as additional permission is granted by the Forest Supervisor.

'10. On December 30, 1957, in the prebid period, John Palazzi * * * one of the prospective bidders on Job A, went to the Highway Department for the purpose of trying to resolve what appeared to him to be an ambiguity or conflict between the foregoing two paragraphs. He wanted to find out if material could be obtained from the National Forest land and, if so, the cost thereof. At the time of Mr. Palazzi's visit to the Highway Department * * * nobody was able to supply him with the information desired. * * * Mr. Palazzi spoke with Nicholas J. Cricenti, Assistant Construction Engineer in the Highway Department * * * who had Stanton C. Otis * * * an...