Southern Crane Rentals, Inc. v. City of Gainesville

• Decision Date: 12 April 1983
• Docket Number: No. AO-60,AO-60
• Parties: SOUTHERN CRANE RENTALS, INC., Appellant, v. CITY OF GAINESVILLE, Appellee.
• Court: Florida District Court of Appeals

Page 771

429 So.2d 771

SOUTHERN CRANE RENTALS, INC., Appellant, v. CITY OF GAINESVILLE, Appellee.

No. AO-60.

District Court of Appeal of Florida,

First District.

April 12, 1983.

Stephen A. Rappenecker of Stephen A. Rappenecker, P.A., Gainesville, for appellant.

Ann Carlin, Asst. City Atty., City of Gainesville, Gainesville, for appellee.

SHIVERS, Judge.

In this contract dispute Southern Crane Rentals, Inc. (Southern Crane) appeals order of final summary judgment entered by trial court in favor of City of Gainesville. Appellant argues, inter alia, that the contract in question is not ambiguous, and therefore, the trial court erred in resorting to custom and usage to create a provision for the parties on a point upon which the contract is silent. We agree, reverse and remand.

The City of Gainesville, defendant below, on August 27, 1980, sent out an invitation to bid, with specifications attached, for the leasing of a 90-ton crane for an approximate three month period. Southern Crane was the successful low bidder at $16,000 per month, and on September 22, 1980, Southern Crane was verbally notified it was awarded the job. Southern Crane made arrangements to begin the work at that time since it was originally anticipated that the construction period would be October 1, 1980, to December 31, 1980. The contract between the parties made no mention of the parties' respective rights in the event that one party desired to cancel the contract. The parties agree that they did not contemplate any cancellation at the time the contract was made and that they formed no intent at that time in regard to the possibility of cancellation.

The purpose of the crane rental was stated to be for setting 100 and 115-foot concrete poles with weights of 20 to 25 tons as required for the construction of a transmission line. Garvin Combs, City Superintendent of Electric Transmission, was project superintendent for the transmission line construction and sole representative of Gainesville in dealing with Southern Crane in connection with the transmission line project. On October 1, 1980, Combs learned of possible delays in the project because of delays in manufacture and delivery of the concrete poles. Combs notified Southern Crane of this problem around the first or second week of October. Southern Crane was told that as soon as the poles arrived, the city would be in touch with them.

On October 23, 1980, Southern Crane was advised to be "available to deliver on November 17, and start setting on the 19th." On November 3 through November 6, 1980, the first five poles were delivered to the site. On November 7, 1980, the city engineering department met and decided to delay the transmission line project for 60 days because the city commission had decided to examine other routes. On November 10, 1980, Southern Crane was advised to hold up delivery for 60 days because of routing problems. On January 5, 1981, Southern Crane contacted the city and was told that problems still existed and there would be further delay. On January 19, 1981, at a public hearing, the city commission made a decision to indefinitely postpone the project until a suitable route was found. Mr. Combs telephoned representatives of Southern Crane and notified them that the job had been "canceled indefinitely." On February 19, 1981, the city formally canceled the contract between it and Southern Crane.

Southern Crane filed suit, charging Gainesville with breach of an executory contract. The city filed a motion for summary judgment on the basis that the absence of any agreement between the parties concerning cancellation rights created a latent ambiguity which required the court to resort to custom and usage to supply the omitted element. The city submitted evidence by affidavit that it was the custom in the crane rental industry to allow unilateral cancellation of crane leases by the lessees. Because this evidence of what constituted custom and usage was uncontroverted, the trial court found no genuine issue as to any material fact and granted summary judgment in favor of the city. This appeal ensued.

Appellee argues that the contract's silence as to cancellation rights creates a latent ambiguity which requires the court to construe the contract in accordance with custom and usage in the local crane industry. We agree that silence can create a latent ambiguity in a contract under certain factual situations. See Hunt v. First National Bank of Tampa, 381 So.2d 1194 (Fla. 2d DCA 1980). We do not think, however, that this is such a case. The laws which exist at the time and place of the making of a contract enter into and become a part of the contract made, as if they were expressly referred to and incorporated in its terms, including those laws which affect its construction, validity, enforcement or discharge. Humphreys v. State, 108 Fla. 92, 145 So. 858 (1933); see cases cited at 11 Fla.Jur.2d Contracts § 129 (1979). Furthermore, contracts are made in legal contemplation of the existing applicable law. Carter v. Government Employees Insurance Co., 377 So.2d 242 (Fla. 1st DCA 1979), cert. denied, 389 So.2d 1108 (1980). Since the parties remained silent on the issue of cancellation rights, the law of Florida in regard to cancellation rights is...