Savin Bros., Inc. v. State

• Decision Date: 19 May 1978
• Docket Number: No. 55011,55011
• Citation: 62 A.D.2d 511,405 N.Y.S.2d 516
• Parties: SAVIN BROTHERS, INC., Respondent, v. The STATE of New York, Appellant. Claim
• Court: New York Supreme Court — Appellate Division

Page 516

405 N.Y.S.2d 516

62 A.D.2d 511

SAVIN BROTHERS, INC., Respondent, v.The STATE of New York, Appellant.

Claim No. 55011.

Supreme Court, Appellate Division,Fourth Department.

May 19, 1978.

Ruth Kessler Toch, Sol.Gen., Louis J. Lefkowitz, Atty. Gen., Albany, for appellant(George M. Thorpe, Albany, of counsel).

Jarvis, Pilz, Buckley & Treacy, New York City, for respondent(Carl Buckley, New York City, of counsel).

Before MARSH, P. J., and MOULE, CARDAMONE, HANCOCK and WITMER, JJ.

MARSH, Presiding Justice:

The State of New York appeals from a judgment of the Court of Claims which ordered that claimant-respondentSavin Brothers, Inc. recover the sum of $872,519.70 with interest of $255,357.43, amounting in all to $1,127,877.13, in full settlement of its claim.

On May 3, 1968claimant-respondentSavin Bros., Inc.(claimant) and appellantState of New York(State) entered into a contract for the construction of Baldwinsville State Fair, State HighwayNo. 8496, plus 6.41 miles of access, and the connection with the Baldwinsville Bypass, State HighwayNo. 67-5, in the County of Onondaga.The project was accepted as completed on August 9, 1971.On May 15, 1972claimant filed a claim against the State for damages due to an alleged breach of contract.The claim as finally submitted to the court alleged as a first cause of action that the State represented and warranted that materials recovered from the excavations would be suitable for use in the embankments; that such materials were unsuitable, as were the materials at the lines and grades shown on the contract plans in the excavation areas; that the State arbitrarily and erroneously refused to permit the claimant to waste the unsuitable materials, or to undercut in the excavation areas, or to borrow suitable embankment and backfill materials; that claimant, under protest, proceeded to use the unsuitable materials and manipulated and compacted each layer of the embankment in accordance with the contract specifications, which had been incorporated as part of the contract; that after the excavation areas were cut to the required lines and grades the subgrade was proof rolled as required by the specifications and in numerous areas, in both the excavation and the embankment, it failed the proof rolling test; that the State ordered claimant to undercut the unsuitable material at subgrade in excavation areas and to replace it with select borrow; that the State refused claimant permission to re-excavate the top two feet of embankment and replace the unsuitable material with select borrow but the claimant proceeded to do so, under protest of the State's refusal, in order to remedy the situation and progress the project to a timely completion; and that therefore the State should be liable for the extra and additional work performed.In the alternative, claimant alleged causes of action second through seventh as follows:

Second: That the State arbitrarily and erroneously refused to permit claimant to waste the unsuitable material; that the claimant placed the unsuitable material in the embankments under protest; that the claimant thereafter manipulated and compacted each layer of embankment as required and approved by the State; that the embankments failed the proof rolling test; that after receiving no direction from the Statethe claimant proceeded to re-excavate a portion of the embankment and replace it with borrow; and that the State is liable for the increased cost and expense of the re-excavation.

Fourth: That upon excavation to the lines and grade set forth in the contract plans the claimant was refused permission to undercut the unsuitable materials and was ordered to complete and grade the subgrade which it did under protest; that after failure of the subgrade under the proof rolling test the claimant was ordered to undercut and backfill portions of the excavated areas with borrow; that as a result the claimant was forced to perform the undercutting in a piecemeal, non-continuous and non-sequential operation; and that the State is liable for the increased costs above the unit prices for excavation which the claimant incurred.

Fifth: That the State is liable for quantities of borrow used to backfill after re-excavation of the embankments.

Sixth and Seventh: That the State is liable for losses sustained as a result of undercutting ordered by the State to be performed in a piecemeal and non-sequential operation with respect to subbase items 3 and 4.

The parties stipulated at trial as to the amount of damages and left open only the issue of liability.The third cause of action was withdrawn.The Court of Claims dismissed the first cause of action and after considering separately each of the remaining causes of action and setting forth the factual bases for the conclusions reached, found liability on the part of the State in the amounts to which the parties stipulated.The State appeals on the grounds that all of the work done by the claimant was within the terms and conditions of the contract, for which the State has paid the agreed upon contract price.In support of its appeal the State argues (1) that the contract explicitly states that the contractor was to absorb the costs of correcting for high moisture content as part of its obligation to compact the layers in the embankment, and that there was no misrepresentation by the State as to the condition of the soil to be excavated and placed in the embankments, (2) that there was no substantial evidence in the record from which the court below could have reasonably concluded that the material in the cuts was unsuitable for use in the embankments or that the compaction and proof rolling requirements were incompatible as the evidence clearly shows that the failure of the proof rolling test was due to claimant's failure to properly dry out the soil and provide adequate drainage, and (3) that the parties agreed as part of their contract that determinations as to the need to correct deficiencies discovered by proof rolling as to suitable moisture content and method of correction, and as to the classification of unsuitable materials were to be left to the discretion of the engineer and should not be disturbed.In response claimant argues: (1) that the evidence shows that the proof rolling failed due to the unsuitability of the materials and the incompatibility of the compaction and proof rolling specifications, either of which was responsible for the increased costs, (2) that the question of the wetness or dryness of the soil is irrelevant as the claimant manipulated the soil as required and is not seeking to recover costs for that work, that the extra work for which recovery is sought was not within the contract but was due to the actions of the State in the arbitrary and capricious determinations of its engineer and in defects and contradictions in the plans and specifications themselves and (3) that the factual findings of the trial court is to be given great weight, particularly here where the demeanor of the witnesses appears to have been taken into account in evaluating their testimony.

The ultimate guide in determining whether or not the contractor is to be paid for extra work is the contract itself (Kuhs v. Flower City Tissue Mills Co., 104 Misc. 243, 171 N.Y.S. 688, mod. other grnds., 189 App.Div. 539, 179 N.Y.S. 450, affd., 190 App.Div. 928, 179 N.Y.S. 930, affd., 231 N.Y. 637, 132 N.E. 919;10 N.Y.Jur., Contracts, § 282).It is a question of intent of the parties.Where the contract contains positive representations as to conditions, substantially amounting to a warranty, recovery may be had, but if the parties intended the contractor to rely upon its own investigation, no recovery for extra work may be had, absent a showing of fraud or misrepresentation as to existing conditions (Niewenhous Co. Inc. v. State of New York, 248 App.Div. 658, 288 N.Y.S. 22, affd.,272 N.Y. 484, 3 N.E.2d 880;Weston v. State of New York, 262 N.Y. 46, 51, 186 N.E. 197, 199;Kuhs, supra;T. J. W. Corp. v. Board of Higher Education of City of N. Y., 251 App.Div. 405, 296 N.Y.S. 693, affd., 276 N.Y. 644, 12 N.E.2d 800;10 N.Y.Jur., Contracts, § 282, supra ).Extra work has been defined as something necessarily required in the performance of the contract which arises from conditions which could not be anticipated (10 N.Y.Jur., Contracts, § 282, supra ).Where one agrees to do, for a stated sum, a thing possible to be performed, he is not entitled to additional compensation merely because he encounters unforeseen difficulties (10 N.Y.Jur., Contracts, § 284).Thus, the general...