Sandel & Lastrapes v. City of Shreveport

• Decision Date: 10 March 1961
• Docket Number: No. 9433,9433
• Citation: 129 So.2d 620
• Parties: SANDEL & LASTRAPES, A Partnership, Plaintiff-Appellee. v. CITY OF SHREVEPORT, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 620

129 So.2d 620

SANDEL & LASTRAPES, A Partnership, Plaintiff-Appellee. v. CITY OF SHREVEPORT, Defendant-Appellant.

No. 9433.

Court of Appeal of Louisiana, Second Circuit.

March 10, 1961.

Rehearing Denied April 12, 1961.

J. N. Marcantel, H. Dan Sawyer, James J. Dormer, Loret J. Ross, Shreveport, for appellant.

Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for appellee.

Before HARDY, GLADNEY and BOLIN, JJ.

GLADNEY, Judge.

This is an action ex contractu for damages allegedly resulting from defendant's breach of obligation to furnish certain concrete pipe. Following trial, judgment was rendered in favor of plaintiff in the sum of $11,856.38. Plaintiff has answered defendant's appeal to this court and requested that the award and damages be increased to the sum of $18,814.38.

Plaintiff, a partnership engaged in the construction business, was awarded a contract by the City of Shreveport on August 14, 1956, for the construction of the 'Lucas Outfall Pumping Station' for the sum of $245,375. The project was a portion of an over-all extension of the city's sewerage system being undertaken at that time. The contract fixed the date of completion as June 10, 1957, and pursuant to the issuance of a work order on August 14th, plaintiff commenced operations on August 15, 1956. The contract imposed upon defendant the obligation of furnishing 5 joints of 60 inch reinforced concrete pipe in 16 foot lengths weighing approximately 1,360 pounds per foot of length. The pipe was not a material house stock item, and special manufacture was required in order to meet the specifications. The contract's initial operation was the excavation of a hole 25 feet 6 inches below the surface of the ground. The bottom of this hold was in excess of 60 feet square, being 4 feet wider in each direction than the structure that was built in it. At a point 10 feet below the surface of the ground the hole was extended an additional 15 feet in two directions, and an additional 8 feet in the other two directions. After the excavation was completed, a 3 foot concrete slab or floor was poured at the bottom, then 2 feet thick concrete walls were formed and poured to a height of 7 feet 6 inches, rising some 4 feet 6 inches above the normal ground. These walls were placed in two lifts, the first 12 feet high and the second 15 feet 6 inches. The plans called for the 60 inch reinforced concrete pipe to enter the building through this 2 foot concrete wall. When in place the bottom of the pipe was to be 10 feet above the low part of the excavation, and the top 16 feet above. The evidence indicates that the walls to 10 feet above the bottom of the excavation were completed about November 15, 1956. The structure had progressed to the point where the installation of the pipe could have been done any time after November 15th. On December 7th plaintiff addressed a letter to the attention of Charles B. Foster, Jr., the engineer representing defendant on the job, advising him that the work had proceeded to the point where the pipe must be installed, and asking that it be delivered to the job site as soon as possible. It was also requested that notice of expected delivery be given. The city at that time had not ordered the pipe. It was not until March 7th that necessary data was furnished to the Tex-Crete Company of Corpus Christi, Texas, and an order for the pipe was not given until April 10th. Delivery was made on June 20 and 26, 1957.

Plaintiff takes the position that the construction period was extended 272 days by reason of a 196 day delay in delivery of the pipe; that actual installation of the pipe under satisfactory conditions could have been performed within ten hours; and that by reason of the delay plaintiff encountered a period of excessive precipitation, thereby necessitating extra labor and services, which items make up the damages herein claimed.

In support of their demands evidence was submitted to the effect that upon timely delivery of the pipe the required excavation could have been accomplished without incurring unusual expense, but that in the four months preceding actual delivery of the pipe Shreveport's rainfall was a total of 13.08 inches in excess of normal. It is contended that the necessity of leaving the excavation open caused intense deterioration in soil conditions and presented almost impossible conditions for pipe placement, thereby requiring large amounts of concrete for stabilization and necessitating additional labor and other expenses. It is shown that during the period of November 15th to January 15th plaintiff had on hand certain mechanical equipment for handling the pipe which was not available immediately after the pipe was delivered, and in consequence thereof plaintiff was required to engage such equipment from the Reeder Construction Company. Further it is shown that the conditions brought about by the excessive rainfall required additional pumping equipment and services. Plaintiff also claims additional expenditure for insurance and taxes.

The defendant, by way of defense, generally denied the accrual of any damages, admitted the delay in delivery of the pipe, but strenuously urged that express provisions of the contract exempted the city from the payment of any damages by reason of delay on its part in the delivery of the pipe, and further, that the contract required plaintiff, as a condition precedent to any claim for damages, to submuit a detailed schedule of all construction operations. The three clauses relied upon are:

'SC--5. Equipment and Materials Furnished by the Owner. Major items of equipment and materials which will be purchased by the Owner and which hall be installed by the Contractor under the provisions of these contract documents include the following:

'a. Pumping Equipment. Consisting essentially of three 10,200 gpm electric motor driven horizontal centrifugal type sewage pumping units complete with motors, foundation bolts, nuts and accessories, bed plates and other appurtenances, all to be located in the new outfall pumping station.

'b. Electrical Equipment. One set of metal-clad motor starting and control equipment to be located in the new outfall pumping station.

'c. Reinforced Concrete Pipe. All 60 inch reinforced concrete pipe required by the plans will be furnished by the Owner. Concrete pipe furnished will be provided with a plastic lining and will be furnished in 16 foot lengths (except for shorter closure pieces) weighing approximately 1360 pounds per feet of length. The pipe furnished will conform to ASTM Standard Specifications for Reinforced Concrete Culvert Pipe, Designation C76 and will be of the tapered slip-joint (tongue and groove) type provided with rubber gaskets as required for jointing.

'The 60 inch concrete pipe will be delivered to the trench side by the pipe manufacturer.

'SC--6. Delivery and Handling of Equipment to be Furnished by the Owner.

'The Contractor's attention is directed to the fact that he will have to accept the rick of any delays in delivery of equipment to be furnished by the Owner and that in the event he is delayed in the prosecution and completion of the work because of this condition of delay, he shall have no claim for damages or contract adjustment, other than an extension of time and the waiving of liquidated damages for and during the period of time occasioned by such delay. All equipment shall be arranged and installed as indicated by the Plans and in conformity with approved installation drawings and instructions furnished to the Owner by the manufacturer of the equipment purchased.'

'SC--15. Schedule of Operations. Before work is started, the Contractor shall prepare a detailed schedule of all construction operations that shall not only indicate the sequence of the work but also time of starting and completion of each part. ...