State v. Dabson

• Citation: 9 Storey 240,59 Del. 240,217 A.2d 497
• Court: United States State Supreme Court of Delaware
• Decision Date: 02 March 1966
• Parties: , 59 Del. 240 The STATE of Delaware, Plaintiff Below, Appellant, v. T. Paul DABSON, Manufacturers' Casualty Insurance Company, a Pennsylvania corporation, and Seaboard Surety Company, a New York corporation, Defendants Below, Appellees. T. Pual DABSON, Defendant and Counterclaimant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. The STATE of Delaware, Plaintiff Below, Appellant, v. GEORGE & LYNCH, INC., a Delaware corporation, Seaboard Surety Company, a New York corporation, and Reliance Insurance Corporation, a Pennsylvania corporation, Defendants Below, Appellees.

Page 497

217 A.2d 497

9 Storey 240, 59 Del. 240

The STATE of Delaware, Plaintiff Below, Appellant, v. T. Paul DABSON, Manufacturers' Casualty Insurance Company, a

Pennsylvania corporation, and Seaboard Surety

Company, a New York corporation,

Defendants Below, Appellees.

T. Pual DABSON, Defendant and Counterclaimant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

The STATE of Delaware, Plaintiff Below, Appellant, v. GEORGE & LYNCH, INC., a Delaware corporation, Seaboard

Surety Company, a New York corporation, and

Reliance Insurance Corporation, a

Pennsylvania corporation,

Defendants Below, Appellees.

Supreme Court of Delaware.

March 2, 1966.

Appeals and Cross-Appeal from Superior Court in and for New Castle county.

Samuel R. Russell, of Bayard, Brill, Russell & Handelman, Wilmington, for State of Delaware.

William F. Lynch, II, and Robert M. High, of Morris, James, Hitchens & Williams, Wilmington, for T. Paul Dabson et al.

David F. Anderson and Richard L. McMahon, of Berl, Potter & Anderson, Wilmington, for George & Lynch et al.

WOLCOTT, C. J., CAREY, J., and MARVEL, Vice Chancellor, sitting.

WOLCOTT, Chief Justice.

These are two appeals by the State from the entry of summary judgments against it upon its complaints, and a cross-appeal taken by the defendants in one of the causes from the entry of summary judgment in favor of the State upon their counterclaim. The appeals and cross-appeal were consolidated for argument and decision in this Court for the reason that they involve the same basic questions of law and grow out of similar factual situations.

Briefly, the causes grow out of a number of contracts between the State Highway Department and the two defendant contractors for the construction of roads or portions of roads. The State seeks to recover from the contractors and the bonding companies large sums of money paid out by the Highway Department for work or materials not required to be furnished under the several contracts involved, or paid out by reason of changes in the contract requirements as to unit prices for materials or changes in the quality and quantity of materials. These payments were for so-called 'overruns'.

The contractors defend the suits by asserting that all changes or revisions in the original contracts were requested, approved or directed by the Department's Chief Engineer, and were later approved by the Department, itself, either by resolution or by acceptance of the final work and payment therefor. In addition, one of the defendants files a counterclaim for work and material furnished but not paid for by the Highway Department.

Basically, the position of the contractors is that the changes in the contract requirements were made under the authority of the Chief Engineer, later approved by the Department, and that final acceptance and payment for the work constitutes under the contracts a release of the contractors from further liability, there being no charge of fraud or error of fact made by the State.

Basically, the State denies that the contractors have been released from liability. It argues that the Chief Engineer had no authority by law or contract to authorize any changes in the work, prices or materials prescribed by the contracts. In effect, the State seeks to repudiate the acts of the Chief Engineer authorizing all the changes, and also seeks to repudiate the final approval of the Department evidenced either by formal resolution or final acceptance of the work and payment therefor.

In an earlier appeal by one of these contractors from an adverse judgment on its counterclaim, George & Lynch, Inc. v. State, Del., 197 A.2d 734, we reversed the judgment entered for the State upon the counterclaim, now no longer pressed by the contractor, on the ground that the sovereign immunity of the State from suit had been waived pursuant to Article I, § 9 of the Constitution, Del.C.Ann. by the enactment by the General Assembly of 17 Del.C., § 132(c)(9) which authorizes the State Highway Department to enter into contracts. We pointed out in that case that the Department was empowered to enter into only valid contracts which must necessarily have mutuality of obligation and remedy, including the right on both sides to sue the other for breach.

In the George & Lynch case we further pointed out that any other result would be unjust since, otherwise, the State, acting through the Highway Department, could mislead its citizens into large expenditures of money in performance of contracts and at the same time deny them the right to hold the State accountable for its breach of its contractual obligations. Such a result, we said, would be so manifestly unjust as possibly to amount to the taking of property without due process of law.

We think this decision fixes the standard of construction of the statutes authorizing the State Highway Department to enter into contracts and to supervise their performance, and also the meaning of the contracts, themselves. This standard is that there must be, as between Department and contractor, mutuality of rights, duties and remedies.

As we have pointed out, 17 Del.C., § 132(c)(9) authorizes the Department to enter into contracts. The contracts in question were entered into pursuant to this statute. Thereafter, by reason of 17 Del.C., § 158 (now repealed), performance under them was under the direction of the Chief Engineer. This section provides:

'The execution and performance of all contracts awarded by the Department shall be under the charge of the Chief Engineer, and his decision shall in all matters concerning the performance of the work and the compliance of the terms of the contract, be final.'

Each of the contracts in question contained in Article Two the following provision:

'It is understood and agreed by and between the parties hereto that all construction work included in this contract is to be done under the direction of the said Chief Engineer of the Department and that his decision as to the time construction and meaning of the said proposal, plans and specifications shall be final.'

The contractors' bids were based upon the State...