Shiloh Const. Co., Inc. v. Mercury Const. Corp.

CourtSupreme Court of Alabama
Writing for the CourtEMBRY; TORBERT, C. J., and MADDOX; TORBERT; MADDOX
Citation392 So.2d 809
Decision Date03 October 1980
PartiesSHILOH CONSTRUCTION COMPANY, INC., a corporation v. MERCURY CONSTRUCTION CORPORATION. 78-779, 78-779X.

Page 809

392 So.2d 809
SHILOH CONSTRUCTION COMPANY, INC., a corporation
v.
MERCURY CONSTRUCTION CORPORATION.
78-779, 78-779X.
Supreme Court of Alabama.
Oct. 3, 1980.
Rehearing Denied Jan. 9, 1981.

Page 810

W. Eugene Rutledge, Birmingham, for appellant.

Stanley D. Bynum of Bradley, Arant, Rose & White, Birmingham, and Herbert D. Jones of Burnham, Klinefelter, Halsey & Love, Anniston, for appellee.

EMBRY, Justice.

Shiloh Construction Company, Inc., appeals from orders of the trial court dismissing its claim based upon breach of contract and requiring remittitur as a condition to the overruling of the motion for new trial of Mercury Construction Corporation; and from that order which set aside the jury verdict and judgment based thereon and granted Mercury's motion for new trial.

Mercury cross-appeals, contending the trial court erred by allowing Shiloh to proceed to trial on its claim based upon fraud.

Shiloh is a Texas corporation, the principal business of which is concrete construction. It is owned and operated by Wendell Halpin and Thomas H. Vanderventer.

Mercury Construction Corporation is a general contractor. It was awarded a contract with the United States Army Corps of Engineers for construction of two trainee barracks on the military reservation at Fort McClellan, Alabama. The Corps of Engineers issued plans, specifications, and amendments thereto, to prospective bidders. Mercury estimated prices for the work and obtained quotations from certain subcontractors in order for them to bid on subcontract work.

Shiloh's first contact with Mercury was after Mercury had been awarded the Fort McClellan construction contract. A few days after 4 July 1976 Mr. Halpin of Shiloh contacted Mercury's senior estimator, Mr. Charles Jones, in Montgomery, expressed an interest in submitting a bid for the concrete subcontract on the Fort McClellan barracks, and made an appointment to pick up a copy

Page 811

of the plans and specifications two days later.

When Halpin picked up the plans and specifications at Jones's office he was given a set that did not contain certain amendments thereto which had previously been made by the Corps of Engineers. Jones, at that time, had in his office at Mercury, for his own use, a set of plans and specifications which did contain the amendments. When properly amended and posted, the plans and specifications are conspicuously marked to show that the amendments were included. The set given Halpin for the purpose of Shiloh preparing its bid was not so marked.

Halpin used those unamended plans and specifications to compute Shiloh's original bid of $833,000 for the concrete subcontract of the Fort McClellan project. In August 1976, on the basis of its bid, Shiloh was invited to Mercury's field office at Fort McClellan to negotiate a contract.

At these negotiations, Halpin and Vanderventer represented Shiloh. Mercury was represented by Jones, Bobby Head, its senior construction manager, Charles Jordan, its Fort McClellan project manager, and Joe Potter, an engineer assigned to the field office to assist Jordan.

Although Mercury offered some evidence to the contrary, there was testimony that Shiloh's negotiators brought to the negotiations, and had in plain view of Mercury's negotiators, the unamended plans and specifications supplied them by Mercury. The fact that the plans and specifications there present were not amended was conspicuous from the absence of a stamp on the front of them indicating the amendments had been posted. There was also testimony that one of Shiloh's negotiators questioned whether there were addenda containing amendments to the plans and specifications in Shiloh's possession. Head, of Mercury, responded by stating: " * * * they are darn sure in there."

The evidence shows that during the negotiations Shiloh was promised the job would follow the Critical Path Method and "that everyone would be out of our way, no one would hold us up in any way, we could get our crews out there, a minimum number of people, and do our work and our production orders and there would be no hold up." The Critical Path Method (CPM) of scheduling construction work utilizes a flow chart showing the work to be performed and the sequence in which it is to be performed. It is used to achieve a smooth and continuous flow of work and to assure completion of the project at a designated time.

Shiloh was induced to lower its bid price for capillary fill, a crushed rock subsurface for concrete floors, based on assurances by Mercury's Jordan that the CPM would allow Shiloh to spread the capillary fill by truck before structural steel was erected. In fact, structural steel was allowed to be erected before Shiloh spread the capillary fill and as a result Shiloh was forced to spend additional money on manual labor.

The negotiations were concluded and culminated with an agreement that Shiloh would do the concrete work for the sum of $794,000, whereupon, Shiloh employed John Ingram as job superintendent and directed him to begin hiring men and acquiring equipment. Actual work at the job site commenced some time shortly before 18 August 1976. At this time, Mercury supplied Ingram with full size field plans which included the amendments. About a week and a half later, Halpin, one of Shiloh's principals, questioned Ingram about discrepancies in the work being performed and the specifications set out in the plans and specifications used by Halpin to work up Shiloh's bid. At this time Halpin discovered the plans and specifications supplied Shiloh for construction differed from those supplied Halpin for bidding the job. He discussed this discrepancy with Jordan, who promised that Mercury would pay for any extra work done as a consequence of the differences in plans and specifications. Shiloh stayed on the job and continued its work according to the amended specifications.

During the course of the work, Jordan, as project manager of Mercury, the general contractor, prepared weekly work schedules.

Page 812

Under these schedules Shiloh was required to make numerous small-volume pours of concrete which were tedious and labor consuming; therefore, costing more per yard of concrete poured than large-volume pours. There was evidence the job was run in an uncoordinated fashion with subcontractors scheduled so that they were in each other's way. Also, men and tools had to be shifted from place to place and caused to perform smaller and more tedious tasks.

On 14 June 1977, Jordan directed a Mercury employee to padlock Shiloh's office trailer located at the job site. Although Mercury claimed Mercury abandoned the job, there was evidence that the only remaining work consisted of large-volume pours and that two weeks before the padlocking Shiloh had contracted with one Ladson Boozer, a local concrete subcontractor, to perform the remaining work under its contract.

We think it significant regarding Mercury's motives and intent to note that several of Shiloh's workers were hired by Mercury after Shiloh was locked out and Mercury contracted with...

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41 practice notes
  • Industrial Chemical & Fiberglass Corp. v. Chandler
    • United States
    • Supreme Court of Alabama
    • September 30, 1988
    ...456 So.2d 771 (Ala.1984); Morgan v. South Central Bell Tel. Co., 466 So.2d 107 (Ala.1985); Shiloh Const. Co. v. Mercury Const. Corp., 392 So.2d 809 (Ala.1980); and Crum v. McGhee, 289 Ala. 244, 266 So.2d 855 (1972)), when there is a willful and malicious wrong, except for negligence in wron......
  • General Motors Corp. v. Edwards
    • United States
    • Supreme Court of Alabama
    • November 15, 1985
    ...318 So.2d 289 (1975). The trial court ordered remittitur and this Court reversed: Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809 (Ala.1980); B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala.1979); Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So.2d 12......
  • Ex parte Lewis
    • United States
    • Supreme Court of Alabama
    • April 2, 1982
    ...punitive damages. 3 This is the reason for the clarifying language in Shiloh Construction Co., Inc. v. Mercury Construction Corp., 392 So.2d 809 "Once an intent to deceive has been established it is difficult to see but that a fraud was committed grossly. Randell v. Banzhoff, 375 So.2d 445 ......
  • Black Belt Wood Co., Inc. v. Sessions
    • United States
    • Supreme Court of Alabama
    • October 3, 1986
    ...is against the preponderance of the evidence, or is clearly wrong or unjust. Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809 This Court stated in its original opinion in this case: "[T]he evidence plainly and palpably supports a finding that Black Belt negligently loade......
  • Request a trial to view additional results
41 cases
  • Industrial Chemical & Fiberglass Corp. v. Chandler
    • United States
    • Supreme Court of Alabama
    • September 30, 1988
    ...456 So.2d 771 (Ala.1984); Morgan v. South Central Bell Tel. Co., 466 So.2d 107 (Ala.1985); Shiloh Const. Co. v. Mercury Const. Corp., 392 So.2d 809 (Ala.1980); and Crum v. McGhee, 289 Ala. 244, 266 So.2d 855 (1972)), when there is a willful and malicious wrong, except for negligence in wron......
  • General Motors Corp. v. Edwards
    • United States
    • Supreme Court of Alabama
    • November 15, 1985
    ...318 So.2d 289 (1975). The trial court ordered remittitur and this Court reversed: Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809 (Ala.1980); B & M Homes, Inc. v. Hogan, 376 So.2d 667 (Ala.1979); Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So.2d 12......
  • Ex parte Lewis
    • United States
    • Supreme Court of Alabama
    • April 2, 1982
    ...punitive damages. 3 This is the reason for the clarifying language in Shiloh Construction Co., Inc. v. Mercury Construction Corp., 392 So.2d 809 "Once an intent to deceive has been established it is difficult to see but that a fraud was committed grossly. Randell v. Banzhoff, 375 So.2d 445 ......
  • Black Belt Wood Co., Inc. v. Sessions
    • United States
    • Supreme Court of Alabama
    • October 3, 1986
    ...is against the preponderance of the evidence, or is clearly wrong or unjust. Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809 This Court stated in its original opinion in this case: "[T]he evidence plainly and palpably supports a finding that Black Belt negligently loade......
  • Request a trial to view additional results

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