Southwest Engineering Co. v. Reorganized School Dist. R-9, Lawrence County, Marionville

• Decision Date: 25 October 1968
• Docket Number: R--9,No. 8690,LAWRENCE,8690
• Citation: 434 S.W.2d 743
• Parties: SOUTHWEST ENGINEERING COMPANY, a corporation, Plaintiff-Respondent, v. REORGANIZED SCHOOL DISTRICTCOUNTY, MARIONVILLE, Missouri, Defendant-Appellant, A. J. Industries, Inc., a corporation, d/b/a Reynolds Mfg. Co., Defendant-Respondent, and Fenestra, Incorporated, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 743

434 S.W.2d 743

SOUTHWEST ENGINEERING COMPANY, a corporation, Plaintiff-Respondent, v. REORGANIZED SCHOOL DISTRICT R--9, LAWRENCE COUNTY, MARIONVILLE, Missouri, Defendant-Appellant,

A. J. Industries, Inc., a corporation, d/b/a Reynolds Mfg.

Co., Defendant-Respondent,

and

Fenestra, Incorporated, a corporation, Defendant-Respondent.

No. 8690.

Springfield Court of Appeals, Missouri.

Oct. 25, 1968.

Motion for Rehearing or for Transfer to Supreme Court Denied

Dec. 2, 1968.

Application to Transfer Denied Jan. 13, 1969.

J. Hal Moore, Moore & Pettit, Aurora, for defendant-appellant.

Horace S. Haseltine, Carl E. Yates, Lincoln, Haseltine, Forehand & Springer, Springfield, for plaintiff-respondent.

HOGAN, Presiding Judge.

This is an action for the balance due on a building contract. On April 19, 1961, the plaintiff and the defendant School District entered into a contract in which the plaintiff agreed to construct an elementary school building in Marionville for the price of $133,989.00. The building was to be completed on November 15, 1961, but the plaintiff contractor encountered various delays and it was not substantially completed until February 8, 1962. The contract contained a provision that if the building was not completed by November 15, 1961, the School District would deduct from the amount otherwise due the plaintiff the sum of $50.00 per day for each calendar day's delay in completion of the work. When the School District finally 'accepted' the building on April 12, 1962, it withheld the sum of $7,347.40, according to the plaintiff, and this suit was brought to recover that sum. Originally, the plaintiff joined one of its suppliers and one of the subcontractors as defendants, but the issues between the plaintiff and those defendants have been disposed of and are not before us on this appeal. The trial court found, among other things, that there was an actual delay of 84 days in completing the construction; that 75 days were excusable but that the School District was entitled to liquidated damages for nine days, and to $132.20 for water furnished the plaintiff while the building was being constructed. Judgment was entered accordingly for the plaintiff, and the defendant School District has appealed. Much testimony and innumerable exhibits were introduced upon the trial, but in the interest of a reasonably brief opinion, we will confine ourselves to a recitation of those facts and consideration of those issues essential to a proper determination of the appeal. See Bloomfield Reorganized School Dist. No. R--14 v. Stites, Mo., 336 S.W.2d 95, 97; Logsdon v. Duncan, Mo., 293 S.W.2d 944, 946(1).

The appellant has made a number of points addressed to the question of delay and liquidated damages, the first of which is that the plaintiff made no timely request for an extension of time, and therefore cannot claim it.

The plans and specifications for this building called for 'the two long (exterior) walls' (about 160 feet long) of the classroom section to be constructed of steel encased windows, or, as they were consistently called, 'window walls.' These window walls were to be fabricated either by or at the direction of a concern aptly named Fenestra, Inc. There was a dispute concerning the date the window walls were ordered, but the supplier's correspondence showed that plaintiff made a positive written order on May 8, 1961, and the order was transmitted to Fenestra on May 10. Fenestra 'scheduled' shipment on September 1 and September 11, 1961. Various delays occurred, and despite the efforts of the supplier, the architect and the plaintiff to obtain delivery, the window walls did not begin arriving at Marionville until November 1, and the shipment was not completed until November 10. On November 1, 1961, the plaintiff communicated by letter with the architect, stating that 'we wish to herewith register our request for an extension of time as necessary beyond the original completion date,' and advising the architect (as he had already been orally informed) of Fenestra's delay in shipping the window walls.

Considering both the printed 'Uniform Contract' which the parties signed and the annexed specifications as one document, Kennedy v. Bowling, 319 Mo. 401, 413, 4 S.W.2d 438, 443(4), the contract contains two provisions dealing with the contractor's delay and extension of time. Article VII of the contract proper provides that the time for completion may be extended for specified causes, if 'a claim therefor is presented in writing to the Architect or Superintendent within forty-eight hours of the occurrence of the delay.' The 'General Conditions' of the specifications also provide for an extension of time, again for specified causes, but provide that 'no such extension shall be made for delay occurring more than ten (10) days before claim therefore (sic) is made in writing to the Architect. In case of continuing cause of delay, only one claim is necessary.'

Various rather technical points are urged in connection with these two contract provisions, but for our purposes it is unnecessary to set down and compare the two paragraph word for word. No doubt as a general rule the provisions of the contract proper control the specifications in case of repugnance or conflict, Boteler v. Roy, 40 Mo.App. 234, 240(4); 17 A C.J.S. Contracts § 327(2), p. 267, but here the two provisions dealing with delay and extension of time conflict only in one respect--the time limit on claims for delay--and to the extent possible they must be harmonized and construed together. Bloomfield Reorganized School Dist. No. R--14 v. Stites, supra, 336 S.W.2d at 100; 17 A C.J.S. Contracts § 309, pp. 163--164. It is likely that the duplication of provisions concerning delay and extension of time was inadvertent; the net result was, with the exception noted, that some of the language of the contract proper was repeated and expanded in the specifications. The two provisions are redundant; they are not irreconcilably in conflict, and when they are construed together they excuse delay in completion of the work if it is caused by unusual delay in transportation, unavoidable casualties or 'any causes beyond the Contractor's control,' provided a written claim for extension is made within 48 hours of the occurrence of the delay.

We cannot agree that no timely request for an extension of time was made. It is our view that Article VII of the contract proper, which controlled, allowed the plaintiff 48 hours after the end of the period of delay in which to present its claim. J. G. Wagner Co. v. Cawker, 112 Wis. 532, 88 N.W. 599, 602. Since the specifications provided that only one claim need be made in case of 'continuing' delay, plaintiff could have complied by requesting an extension after the window walls failed to arrive on September 11, but thereafter no firm delivery date was promised, and the delay in shipment did not finally end until November 1. Plaintiff thereupon communicated with the architect and that was sufficient. It may be, as the defendant argues, that the written request was defective in detail, but it was timely and it served the elementary purpose of the contract provision; it advised the defendant of the cause for delay and gave notice of plaintiff's intention to insist upon the late delivery of materials as a reason for prolonging the completion date. In the context and circumstances of this case, it was sufficient.

It is further contended that the delay was not the result of any cause specified in the contract provisions, but the appellant does not question the excusability of the delay if it was caused by Fenestra's failure to deliver the window walls, and hence it is unnecessary to consider whether the manufacturer's failure to deliver the particular materials specified was an excusable delay in the absence of a special contractual provision, Simpson Bros. Corporation v. John R. White & Son, C.C., 187 F. 418, 424(3); Anno., 152 A.L.R. 1349, 1391--1392 (1944); 17A C.J.S. Contracts § 505(2), pp. 800--801, and we need not pursue the meaning of the phrase 'causes beyond the Contractor's control.' See Carolina Spruce Co. v. Black Mountain R. Co., 139 Tenn. 137, 201 S.W. 154, 156. The appellant's claim in this respect is that the delay was caused by the plaintiff's failure to have a large enough crew of workmen on the job to complete it on time, and not by the late delivery of materials.

This point is not without substance. Mr. Amspacher, the architect, testified that during the month of October 1961 complaint was made by the defendant concerning the progress of the job, and Mr. Williams, the plaintiff's foreman at Marionville, said he was not given sufficient personnel to get the job done 'as quickly as he would like to.' Mr. Amspacher also had the opinion that with a large crew of workmen, the job could probably have been finished within a month after the last shipment of window walls arrived, and he testified, in effect, that a good deal of the work which was postponed until the window walls arrived could actually have been completed earlier. A Mr. Wiley, the Superintendent of Schools at Marionville, testified that plaintiff's foreman had complained to him about the shortage of manpower, and Mr. Smart, the School District's secretary, testified similarly. The defendant further subpoenaed the plaintiff's time cards and introduced them in evidence. Counsel claim, with some justification, that these cards show the plaintiff put considerably less effort into the completion of the building after the window walls arrived than it did before they arrived. The defendant also points to various inaccuracies and inconsistencies in the plaintiff's proof that its progress was delayed by rain, and argues that plaintiff's evidence that the delay in completion of the building was caused by Fenestra's failure to ship the window walls and inclement and rainy weather is unworthy of belief. We agree that the plaintiff's proof that it...