Roberson v. Tennessee Valley Authority

• Decision Date: 16 February 1939
• Docket Number: 8 Div. 925.
• Citation: 237 Ala. 279,186 So. 727
• Parties: ROBERSON v. TENNESSEE VALLEY AUTHORITY.
• Court: Alabama Supreme Court

186 So. 727

237 Ala. 279

ROBERSON v. TENNESSEE VALLEY AUTHORITY.

8 Div. 925.

Supreme Court of Alabama

February 16, 1939

Appeal from Circuit Court, Lawrence County; A. A. Griffith, Judge.

Action in assumpsit by Walter Roberson against the Tennessee Valley Authority. From a judgment for defendant, plaintiff appeals.

Affirmed.

Wm. L Chenault, of Russellville, for appellant.

James Lawrence Fly, Wm. C. Fitts, Jr., and Conrad M. Kennedy, all of Knoxville, Tenn., for appellee.

GARDNER Justice.

Plaintiff Roberson, upon the basis of competitive bids solicited by defendant, Tennessee Valley Authority, was awarded the contract for loading, unloading and hauling materials in accordance with attached specifications as to wage scale and conditions.

Item number three (here in dispute), for which bids were solicited, called for bids as follows: "unit (ton mile) price for loading, hauling and unloading material and equipment to and from points in the 'Wheeler area,' to be designated by the Authority as requirements develop."

Plaintiff in response to this invitation, submitted his bid upon the basis of the ton mile as a unit of fourteen cents for the first mile and seven cents for each additional mile. His bid was accepted and a written contract duly executed.

The following provisions of the contract are here pertinent:

"Section 2. The services consist of hauling by motor vehicle, loading, unloading and delivering lumber, sand, cement, stone, reinforcing steel, and miscellaneous materials, supplies, and construction equipment to and from points in the 'Wheeler area' as designated and directed by the Authority as its requirements develop."

"Section 7. The Authority will pay, and the contractor will accept, as full compensation for the performance of all his obligations hereunder as follows * * * for loading, hauling, and unloading material and equipment to and from points in the 'Wheeler area' to be designated by Authority per unit of one ton, 14¢ for the first mile, 7¢ for each additional mile."

In this last noted section is the further provision that "payments will be based on measurements of distance and computations of weight made by the Authority, which shall be conclusive, and will be made as soon after the first and fifteenth days of each month as vouchers can be prepared by the Authority or properly certified invoices covering services performed up to and including the fifteenth and last days of each preceding month, respectively. No extra or additional compensation will be allowed for the condition of the materials or the roads or any other reason." And in section 8, it was provided the contract could be terminated at any time by the Authority upon ten days' written notice to the contractor, and by the contractor on thirty days' written notice to the Authority.

Under the terms of the contract the invitation for bids, the contractor's bid, and the conditions of bid, all attached to the contract, were made a part thereof. The conditions of bid (made a part of the contract) in the nineteenth paragraph contain the following stipulations:

"All payments shall be made on railroad scale weights except as noted below.

"When shipments do not come by rail, and therefore there is no railroad scale weight, payments shall be made on actual weights of the material hauled. It shall be the contractor's responsibility to secure duplicate copies of these weight slips.

"Sand and gravel, when shipments are not made by rail, shall be measured on struck measurements of the truck, as determined by the Authority's engineers. A cubic foot of sand shall be considered as weighing ninety-six (96) pounds per cubic foot and a cubic foot of gravel shall be considered as weighing one hundred two (102) pounds per cubic foot.

"Payments on cement shall be made on the basis of ninety-four (94) pounds per bag.

"Under Item No. 3, payments shall be made on the basis of actual weight carried and actual miles hauled. The trucks shall be equipped with accurate odometers, which may be checked at any time by the Authority's engineers. Certificates showing actual miles covered on each such trip shall be supplied. These certificates shall show number of miles traveled, point of origin, material hauled, and weight of material."

The twelfth paragraph of these conditions reads:

"Claims and protests.--If the contractor takes exceptions to any ruling or measurements of the Authority, he shall, within ten days thereafter, file a formal written protest with the said Authority, or be considered as having waived all future claims on account of the ruling or measurement excepted to."

On the basis of this contract plaintiff instituted this suit, claiming underpayment for the hauling done. Confessedly, however, he had been paid in full for the actual distances the loads were hauled under the contract. Plaintiff submitted invoices which set out the amount due him each semi-monthly period throughout the entire period of the contract, and it is admitted the defendant Authority had paid plaintiff in full on the basis of these invoices submitted. Each invoice stated, "we certify that the above invoice is correct," and bore plaintiff's signature. Plaintiff's claim of underpayment is two-fold: first, he insists defendant's construction of the contract as to hauling distance is incorrect, in that, in addition to payment for actual distances hauled, he should receive payment for the difference between a fraction of a mile and a whole mile. For instance, his insistence is that if he hauled a load a distance of two and one-tenths miles he should be paid as if he had hauled three miles, rather than the fractional mile, as contended by defendant, and upon which basis of actual mileage payments have been made. And the second contention as to underpayment is that an employee of defendant told plaintiff payment would not be made for loads hauled unless he could produce a weight ticket, and that he traveled a greater distance to the scales for that purpose, and in addition had to pay the twenty-five cents weighing fee.

As to the question of haulage distance, that is, that any fraction of a mile should be construed as a whole mile, plaintiff stated his contention to some one of the employees and a ruling was obtained in September 1935 by way of letter to the effect the Authority stood upon the contract as written, and theretofore acted upon by the parties (payments having been made on the actual mileage basis), and that if plaintiff was not satisfied with the contract as written he might avail himself of the privilege of cancellation provided therein. But plaintiff did not avail himself of the privilege of cancellation. He continued to haul until the job was completed. He had also complained to some of the employees in regard to the trips to weigh and weighing fees, but to no avail. Speaking to this matter plaintiff testified "When I received that letter telling me definitely and in writing that the TVA was going to stick to its interpretation of the contract about which I was complaining and...