R & R Const. Co. v. Junior College Dist. No. 529, Olney

• Decision Date: 30 November 1977
• Docket Number: No. 75-451,75-451
• Citation: 370 N.E.2d 599,12 Ill.Dec. 795,55 Ill.App.3d 115
• Parties: , 12 Ill.Dec. 795 R & R CONSTRUCTION CO., a corporation, Plaintiff-Appellant, v. JUNIOR COLLEGE DISTRICT NO. 529, OLNEY, Illinois, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 599

370 N.E.2d 599

55 Ill.App.3d 115, 12 Ill.Dec. 795

R & R CONSTRUCTION CO., a corporation, Plaintiff-Appellant, v. JUNIOR COLLEGE DISTRICT NO. 529, OLNEY, Illinois, Defendant-Appellee.

No. 75-451.

Appellate Court of Illinois, Fifth District.

Nov. 30, 1977.

Hoagland, Maucker, Bernard & Almeter, Alton, for plaintiff-appellant; James K. Almeter, Al Pranaitis, Alton, of counsel.

Laurence L. Arnold, Olney, for defendant-appellee.

JONES, Justice.

Plaintiff, R & R Construction Company (R & R), brought suit against Junior College District No. 529 (College District), the defendant, seeking additional compensation for a particular earthwork operation which it claimed was an extra to a construction contract between the parties. The claimed cost of the extra was $113,978.45. Following a bench trial in the circuit court of Richland County, the court found, inter alia, that this work was not an extra and entered judgment in favor of defendant. R & R appeals to this court.

The only issue on appeal is whether the use of a lime soil stabilization process upon excavated areas was an extra for which R & R is entitled to additional compensation in excess of its bid for the construction project.

R & R has made a motion in this court for leave to amend its complaint in order to conform the pleadings to the evidence; the College District has filed objections, and we have taken the motion with the case. The proposed amendment would clarify the point that the work for which claim is made is the lime soil stabilization process and that it was utilized in areas of the parking lots, plazas, and sidewalks which were in excavation, rather than merely in the main parking lot. Since our decision in this case renders valueless a granting of the motion, we deny plaintiff's motion to amend its complaint.

In 1971 the College District solicited bids from various general contractors for the construction of a building and various site developments, including a parking lot, roadways and walkways. R & R was the successful bidder and the parties entered into a written contract for the construction project in the latter part of 1971. This project was the first phase of construction of college facilities for Olney Central College.

In order to supply a framework for the understanding of the factual context of this case, we initially detail some information relating to construction work which we have gleaned from the evidence of record. Whenever buildings or paved areas are constructed, it is imperative that the soil beneath these improvements be of a suitable density to support them and to avoid damage to the improvement by shifting or settling of the soil. If the soil does not meet the density requirement deemed suitable by the architect or engineer the contractor endeavors to compact or compress the soil until it is properly dense. The most common method to achieve compaction is to use roller equipment on the soil. Depending on the topography of the land, the soil base or grade beneath any improvement is reached either by excavating down to a desired elevation or by filling in soil up to an elevation. Generally speaking, serious compaction problems are encountered more often in areas that are in fill as opposed to in excavation since the earth beneath an excavation is in its natural state and tends to be more dense than fill soil.

The contract specifications in this case required a maximum density of 95% At optimum moisture of all soil under building slabs and paved areas regardless of whether the grade was achieved by excavation or filling. The subgrade soil under excavated areas was specifically required to exhibit this density in the top 12 inches.

Apparently as its first operation in this project, R & R removed the top soil and existing vegetation from the area designated to be the main parking lot and stockpiled it for future use. This was done in late 1971. In the summer of 1972 part of the parking lot area was graded or excavated to a depth of 12 inches. R & R attempted to compact this soil to the density requirements of the contract for soil beneath paved areas by use of a disk and a "sheepsfoot" roller. These attempts were unsuccessful.

Again in the spring of 1973, R & R attempted, unsuccessfully, to achieve the required compaction by use of conventional compaction equipment (disk and rollers). It was determined that the problem was excessive moisture. According to testimony at trial, in order to achieve the desired density by compaction the moisture content of the subgrade soil needed to be in the range of 11 to 13%. Soils expert John Mathes testified in rebuttal for plaintiff that the moisture content encountered was in the range of 28 to 30%.

After discovering this problem several letters were exchanged between R & R and the architect-planner about the difficulty. The College District was apprised of the problem by copies of these letters. The architect's position was that this soil was indeed compactible; however, further attempts to compact it by rolling revealed that the required density could not be readily achieved by this method due to the high moisture content.

In July of 1973 architect job representative, William Jarvis, directed R & R construction manager, Howard Peters, Jr., to consult a soils expert to determine what methods would be necessary to compact the material and to get the work done. Mr. Peters consulted soils expert Jack Faggetti. Utilization of Mr. Faggetti seemed particularly appropriate since he was familiar with the site and its soils, having already taken tests and provided advice to defendant's architect. Mr. Faggetti recommended use of lime on the soil as a drying agent so that compaction could proceed and be accomplished before the arrival of winter necessitated delay of the work until the following year.

R & R's Mr. Peters testified that he and architect representative Mr. Jarvis discussed at some length whether the use of this process on the excavated areas was extra work for which plaintiff should receive additional compensation. The architects maintained that it was not extra work but rather within the contractor's obligations, and refused to approve a change order. Mr. Peters further testified that he informed E. Kenton Peak, a College District representative, that he believed the work was an extra although the architects refused to consider it as such.

R & R proceeded with the lime process and was subsequently able to achieve the density required. The process was relatively simple. Hydrated lime was spread over the soil and worked into it by use of several pieces of equipment, including one called a Seaman pulverizer. The pulverizer works similarly to a garden tiller, except on a larger scale. It stirred up the soil and mixed in the lime. It is this work which R & R claims is an extra and for which it seeks the instant monetary award.

For a contractor to recover additional compensation from an owner for extra work, the contractor must prove the following essential elements: (a) the work was outside the scope of his contract promises; (b) the extra items were ordered by the owner; (c) the owner agreed to pay extra, either by his words or conduct; (d) the extras were not furnished by the contractor as his voluntary act; and (e) the extra items were not rendered necessary by any fault of the contractor. (Watson Lumber Co. v. Guennewig, 79 Ill.App.2d 377, 226 N.E.2d 270; Bulley & Andrews, Inc. v. Symons Corp., 25 Ill.App.3d 696, 323 N.E.2d 806; Mayer Paving & Asphalt Co. v. Carl A. Morse, Inc., 48 Ill.App.3d 73, 8 Ill.Dec. 122, 365 N.E.2d 360.) The proof that the items are extra, that the defendant ordered it as such, agreed to pay for it, and waived the necessity of a written stipulation, must be by clear and convincing evidence. Watson Lumber Co. v. Guennewig.

After carefully considering the evidence presented at trial, the contract documents and the applicable principles of law, we conclude that R & R has failed to prove that the lime process was outside the scope of its contract promises and therefore extra.

R & R's argument at trial and before this court as to this being extra work is centered upon the specific enumeration of compaction methods and compaction aids found in sections 220.5 and 220.6 of the Earthwork portion of the contract specifications, respectively entitled Excavation and Fill and Compaction. A portion of section 220.5, dealing with excavation for paved areas, building slabs and foundations, states that if the subgrade soil does not meet the density requirement of 95% To a depth of 12 inches, "the subgrade shall be compacted by proof-rolling or by the use of suitable compaction equipment to obtain the density specified."

Section 220.6 directs that each layer of fill should be compacted with approved equipment to achieve the required density and subsequently provides, "In lieu of drying by manipulation of soil containing excessive moisture, the Contractor may employ hydrated lime or monohydrated lime or similar beneficial ingredients to reduce the moisture content, * * *."

R & R argues that it is clear from the language of these provisions that the use of the lime soil process was not contemplated with respect to compaction of subgrade soil but only with respect to fill soil. Consequently, R & R concludes that its only contract obligation with respect to these excavated areas was to compact the subgrade soil by use of rollers and that the lime work was therefore extra. We believe that this view involves a fundamental misconception as to what R & R's contractual promise was with respect to subgrade soil.

Its fundamental obligation was to do what was necessary to get this soil to the proper density for the placement of improvements thereon. The specifications required proof-rolling or use of suitable compaction equipment if the subgrade soil did not meet the contract's requirement. This, we believe, was a minimum and non-exclusive requirement. The...