Rissler & McMurry Co. v. Atlantic Richfield Co.

• Decision Date: 12 January 1977
• Docket Number: Nos. 4586,4587,s. 4586
• Parties: RISSLER & McMURRY COMPANY, Appellant and Cross-Appellee (Plaintiff below), v. ATLANTIC RICHFIELD COMPANY, Appellee and Cross-Appellant (Defendant below), v. CERTIFIED WELDING COMPANY, Appellee and Cross-Appellee (A Joined Defendant below).
• Court: Wyoming Supreme Court

Page 25

559 P.2d 25

RISSLER & McMURRY COMPANY, Appellant and Cross-Appellee (Plaintiff below), v. ATLANTIC RICHFIELD COMPANY, Appellee and Cross-Appellant (Defendant below), v. CERTIFIED WELDING COMPANY, Appellee and Cross-Appellee (A Joined Defendant below).

Nos. 4586, 4587.

Supreme Court of Wyoming.

Jan. 12, 1977.

Harry E. Leimback and David B. Park, Casper, signed the briefs and Harry E. Leimback appeared in oral agrument on behalf of the appellant and cross-appellee Rissler & McMurry Company.

James W. Owens, Murane, Bostwick, McDaniel, Scott, Greenlee & Owens, Casper, signed the briefs and appeared in oral argument on behalf of the appellee and cross-appellant Atlantic Richfield Company.

R. Michael Mullikin, Lathrop, Uchner & Mullikin, Cheyenne, signed the briefs and appeared in oral argument on behalf of the appellee and cross-appellee Certified Welding Company.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

From money judgments in favor of plaintiff Rissler & McMurry Company against defendant Atlantic Richfield Company in the sum of $35,569.30 and against defendant Certified Welding Company in the sum of $5,398.64, based upon jury verdict, plaintiff partially appeals and defendant Atlantic Richfield cross-appeals. Plaintiff Rissler is satisfied with the principal amounts of judgments against each of the defendants but claims the trial court should have allowed prejudgment interest. Defendant Atlantic Richfield in its cross-appeal claims the judgment should have been entirely against joined defendant Certified Welding. Without leaving it a mystery at this point in this lengthy opinion, we announce our intention to affirm the district court excepting to allow prejudgment interest and remand for correction of the judgments accordingly. We shall hereafter refer to Rissler & McMurry as Rissler, Atlantic Richfield as ARCO and Certified Welding as Certified.

There was originally an action filed by ARCO as plaintiff against Rissler for asphaltic materials and petroleum products sold the latter in its highway construction work in the sum of $46,088.94. Rissler refused payment, though it admitted the debt. Its refusal to pay was based on the ground that ARCO, by way of set-off, owed it for paving, equipment rental and base material furnished to ARCO at its Sinclair refinery. ARCO took a consistent position then and still does that Certified agreed to do the work under a written contract for a guaranteed price of $35,000.00, that Rissler was only its subcontractor, that the work was unsatisfactory and incomplete to its damage in the sum of $15,000.00, and the total now claimed against it and what it has already paid exceeds the guaranteed price. Summary judgment was granted ARCO for its $46,088.94, plus interest, on May 15, 1973, but there remained the counterclaim of Rissler.

Thereafter, defendant Rissler joined Certified as defendant in the light of plaintiff ARCO's claim that joined defendant was the contractor, not Rissler, praying that if it be found Certified ordered the work done that Rissler have judgment against that firm for the.$40,967.94, together with interest at the rate of 7% from July 20, 1970. Certified denied and still denies that it employed or contracted with Rissler to do the paving for ARCO. For the purposes of trial to prevent confusion, Rissler was redesignated as plaintiff with ARCO and Certified, defendants. We continue that redesigation.

Apparently, during trial, the issues were:

1. Did a valid contract, written or oral, exist between Certified and Rissler for paving plant roads at ARCO's Sinclair refinery?

2. Did a valid contract, either oral or written, exist between Certified and ARCO for paving plant roads at the ARCO refinery at Sinclair, wyoming?

3. Did a valid contract, written or oral, exist between Rissler and ARCO for the paving of plant roads at Sinclair, wyoming?

4. What was the reasonable or contract price of labor and materials performed and supplied by Rissler in connection with its work done on the plant roads?

5. Was the work performed in a workmanlike manner?

6. Was Certified limited to the sum of $35,000.00 for all work performed by either Certified or Rissler on the plant roads?

7. To what extent was Certified and (or) ARCO liable to Rissler for work it performed?

The issues here are:

1. Should prejudgment interest be added to the judgments obtained by Rissler against ARCO and Certified as claimed by appellant? The matter of interest was not tried to nor considered by the jury. None of the parties requested jury consideration of interest allowance. The trial court denied prejudgment interest on the verdict amounts though it was timely demanded by Rissler.

2. Did the jury reach a verdict unsupported by the evidence, in favor of Rissler and against ARCO? ARCO, as a cross-appellant, claims the jury reached an erroneous verdict against it instead of Certified because of inadequate jury instructions by the trial judge, which is the real issue presented by cross-appellant.

On appeal, evidence advantageous to the prevailing party must be given every favorable inference that can be reasonably and fairly drawn from it, in support of a jury's verdict. Berta v. Ford, Wyo.1970, 469 P.2d 12. See West's Wyoming Digest, Appeal and Error, k930, for many other cases. As a reviewing court, we cannot substitute our judgment on the facts for the jury's. Miller v. City of Lander, 1969, 453 P.2d 889. See West's Wyoming Digest, Appeal and Error, k 999(1). Any mention of facts in this opinion will be set out in that light unless otherwise noted.

We will first dispose of ARCO's cross-appeal. A narration of the sequence of facts will build up a background which should logically lead us finally into the more important interest question.

In the spring of 1970 ARCO made plans to pave open areas of its Sinclair refinery. At the time, Certified was working at the plant, engaged in performing a welding and piping job, the principal type of work for which it is organized. Certified's general superintendent there had experience with dirt work and was qualified in preparation of roads for paving. ARCO representatives discussed with him the interest of Certified in bidding for the paving job. Certified was not equipped to do paving. At the time, Rissler was in the area doing paving work for the Wyoming State Highway Department, about to finish up its contract and move on. During the course of discussions between ARCO and Certified, it was mentioned that Rissler might be available to do the paving, after base preparation by Certified.

Rissler was contacted by a Certified representative. Rissler's estimator prepared a quotation subject to the limitations that the base work would be done by Certified, the base would be oil primed by another company, and ARCO would furnish and deliver the asphalt liquid material to Rissler's mix plant already set up in the vicinity. Rissler would mix, deliver and lay a paved surface. Rissler quoted a price 'three inches thick a dollar seventy five a square yard. That was based on 11,000 square yards.' (The 11,000 figure was later reduced to 10,000).

Certified then, in a proposal to ARCO, described the paving in its bid in various ways: 'Bid price per sq. yd. is based on 10,000 sq. yds. of asphalt paving 3 ' thick on existing Sub-Grade * * *. Firm Lump Sum price based on 10,000 sq. yds. main roadway paving 3 ' thick.' The bid of Certified was for the whole job, including preparation of the sub-grade and drainage, except that ARCO would furnish the liquid for hot mix and prime coat. The 'Firm Lump Sum price' referred to was $35,000.00-10,000 square yards at $3.50 per square yard.

ARCO was fully aware of Rissler's quoted price of $1.75 per square yard, three inches thick for just paving. It was discussed by Rissler's representatives directly with ARCO's representatives as well as when representatives of ARCO, Certified and Rissler were all present. ARCO had received bids from others as well.

Rissler was anxious to know whether it would do the work because it wanted to go on to another job. ARCO never did accept the proposal as made by Certified but issued a 'purchase order' for a 'guaranteed maximum of $35,000.00,' which Certified never accepted. The purchase order became a counter offer and not an acceptance of Certified's proposal, in that it varied the terms of the offer. Trautwein v. Leavey, Wyo.1970, 472 P.2d 776, 779. Without any firm commitments ARCO told Certified to proceed with the base. Certified bought crushed based material from Rissler. Certified ran into problems with soft spots where the usual crushed rock base could not be satisfactorily used, so upon consultation with and instructions from ARCO personnel, an asphaltic base in those spots was decided upon.

A further problem developed when it was discovered that the usual plain crushed rock base could not be used over pipes which were under the plant roads. By using tamping equipment, the danger of creating leaks became apparent. Again, an asphaltic mix base was decided upon; such a mix would solidify after being spread. All base material-both crushed rock and special mix-was ordered from Rissler, which it billed to Certified. The crushed base was separately invoiced to ARCO by Certified and came to $5,398.64. ARCO paid that sum to Certified. Certified admitted at the trial that it should have forwarded that amount on to Rissler. The judgment against Certified in that amount is not in dispute. The special asphaltic base material furnished by Rissler was on another bill and we will come to that.

Rissler, shortly before July 1, 1970, began heavily pressing ARCO management for a go ahead because it had to proceed on to its next job. While the evidence at this point becomes conflicting, in the light of the jury's verdict, we conclude that ARCO dealt directly with Rissler and instructed Rissler to proceed on the basis of its quoted firgure of...