Studer v. Rasmussen, 2853

• Citation: 344 P.2d 990,80 Wyo. 465
• Decision Date: 20 October 1959
• Docket Number: No. 2853,2853
• Parties: R. J. STUDER, d/b/a Studer Construction Company, and Studer Construction Company, a foreign corporation, Appellants (Defendants below), v. Willard N. RASMUSSEN and Clifford E. Rasmussen, d/b/a Rasmussen Brothers, a Co-partnership, Appellees (Plaintiffs below).
• Court: United States State Supreme Court of Wyoming

Page 990

344 P.2d 990

80 Wyo. 465

R. J. STUDER, d/b/a Studer Construction Company, and Studer Construction Company, a foreign corporation, Appellants (Defendants below), v. Willard N. RASMUSSEN and Clifford E. Rasmussen, d/b/a Rasmussen Brothers, a Co-partnership, Appellees (Plaintiffs below).

No. 2853.

Supreme Court of Wyoming.

Oct. 20, 1959.

Henry A. Burgess and Bruce P. Badley, Sheridan, for appellants.

Holstedt & Schwartz, Sheridan, oral argument by Robert E. Holstedt and Harry F. Schwartz, Sheridan, for appellees.

Before BLUME, C. J., PARKER, J., and PEARSON, D. J.

Mr. Chief Justice BLUME delivered the opinion of the court.

This is an action brought by Willard N. Rasmussen and Clifford E. Rasmussen against R. J. Studer, doing business as Studer Construction Company, to recover an amount due on a subcontract and for damages for delay in connection therewith. Subsequently the Studer Construction Company was added as a defendant.

The defendants had a contract with the United States Government for constructing water and sewer systems, paved roads and electrical distributing system at the Glasgow Air Force Base near Glasgow, Valley County, Montana. Part of this work relating to the construction of roads was subcontracted by the defendants to the plaintiffs in this case. Under that contract the subcontractors agreed to furnish all labor, materials, equipment and supplies, and to perform all work as described below. It was agreed that the work, labor and materials to be done, performed or furnished by the subcontractors were as follows:

'Item No. 7. 3,760 Cu. Yd. Leveling Course, 1 1/2 inch minus (in place)

'Item No. 8. 30,300 Cu. Yd. Base Course, 1 1/2 inch minus (in place)

'Item No. 10. (Part). 1,670 Ton Mineral Aggregate, (produce and stockpile only.)'

The contractor agreed to pay the subcontractors for performance of the subcontract as follows:

                                             "Unit Price  Estimated Amount
                                              ----------  ----------------
                "Item No.   7.   3,760 C.Y.    $ 1.40        $ 5,264.00
                "Item No.   8.  30,300 C.Y.      1.00         30,300.00
                "Item No.  10.   1,670 Ton       2.00          3,340.00"
                

It might be mentioned that many months after the times hereinafter stated Item No. 10 was eliminated from the work to be performed on behalf of the Government of the United States but the government agreed to pay and did pay the defendants for 387 tons of mineral aggregate under Item 10 already produced at that time and the defendants herein used 194 tons and 91 tons of this aggregate and agreed to pay the plaintiffs for that at the rate of $3 per ton.

The contract provided that the subcontractors should be bound by the general conditions of the contract between the government and the contractor.

This action was brought on May 15, 1957, in the District Court of Sheridan County. In the first cause of action the plaintiffs claimed judgment for $2,818.04 and interest. This included the sum of $1,000 still due under items 7 and 8, the amount paid by the government for the 387 tons of mineral aggregate, the amount due for the mineral aggregate used by the defendants themselves and also the sum of $389.04 for a bond furnished by the plaintiffs in accordance with the agreement between the parties.

In the second cause of action plaintiffs claimed damages for delaying the plaintiffs in the performance of their contract for a period from July 15, 1955, to September 15, 1955, and also further damages by reason of the fact that they had to perform the contract in cold weather and were delayed in the work by reason thereof.

The court rendered judgment for the plaintiffs on the first cause of action as claimed by the plaintiffs and on the second cause of action found the following facts:

'8. That on July 5, 1955, the Defendant wrote Plaintiffs a letter directing them to move on to the job and commence work thereon by July 11, 1955 at the latest.

'9. That in response to said direction from the Defendant, the Plaintiffs moved their equipment, supplies and labormen from Sheridan, Wyoming, to the jobsite at Glasgow Air Force Base, near the town of Glasgow in northern Montana, and were ready, able and willing to begin performance under said sub-contract between the parties hereto on the 20th day of July, 1955.

'10. That the approximate value of Plaintiffs' equipment allocated, moved to and used upon said job was $200,000.00.

'11. That on the said 20th day of July, 1955, and for a period thereafter, extending up until September 12, 1955, the Plaintiffs though ready, willing and prepared to do so, were unable to commence performance of the work to be done by them under said contract between the parties hereto because Defendant had failed to perform preliminary work required of him under his prime contract with the government for the installation of water and sewer utility lines which had to be placed under the streets and roads before the Plaintiffs could commence performance under their sub-contract to place the gravel thereon, a circumstance of which the Defendant was advised and knew.

'12. That by reason of the Defendant's action in directing the Plaintiffs to move in upon said job, before the same was in a condition for them to perform under their sub-contract, and by reason of the Defendant's failure to perform the preliminary work on its part to be done under the prime contract with the government before the Plaintiffs could commence performance, until September 12, 1955, the Plaintiffs were required to, and did, expend in wages for its labormen at the Glasgow Air Force Base, the amount of Three Thousand One Hundred Eighty-Four Dollars and Forty-Two Cents ($3,184.42) during said delay period, commencing July 20, 1955, and ending September 12, 1955, for which Plaintiffs received no benefit and, for the same reasons and for the same period, were required to hold in readiness upon said job their machinery and equipment necessary to perform the work to be done by them under said sub-contract for which they received no benefit, and for which the reasonable rental value, or return thereon, during said delay period amounted to Twelve Thousand Fifty Seven Dollars and Six Cents ($12,057.60).

'13. That the evidence fails to show that the additional delay of approximately one and one-half months alleged by the Plaintiffs in the completion of the work done under said contract, after the same had been commenced, was entirely due to the Defendant's action in delaying the commencement of the work to be done under the Plaintiffs' sub-contract until September 12, 1955.'

Judgment for the plaintiffs accordingly was entered upon the first cause of action in the sum of $2,818.24 and judgment for $15,241.48 on the second cause of action. The court disallowed any damages by reason of the delay claimed by the plaintiffs due to cold weather conditions.

From this judgment the defendants have appealed to this court.

The letter mentioned by the court written by R. J. Studer to the Rasmussens is as follows:

'Billings, 7-5-55

'Whitey Rasmussen,

'Rasmussen Brothers:

'Thanks for returning the signed contract. I am enclosing your copy for your files.

'You can get going up there as soon as you wish to, but don't figure on later than this week if possible. Arnold is adding to his dirt equipment, and is going good on the streets. The contractor on the dormitories and on the fire station, mess hall etc. has signified his acceptance of our sub prices, so that will call for some more gravel and possibly aggregate at better prices. It looks certain that you can put out concrete aggregate if you will at pretty good prices. Herb has been approached by several contractors including NWEng., about whether we would put out material for them. He has a record of whats been let and who has it. The pit looks OK for sand too as far as I can gather. No concrete tests as yet, but the stuff is non-pl. and plenty hard.

'Hope that you can make plans to move up by the end of this week, or by the 11th of July at the latest.

'Studer Construction Co.

'by /s/ R. J. Studer

'R. J. Studer'

The writing of this letter and the receipt thereof by the Rasmussens is not disputed herein.

The work to be done by the plaintiffs and appellees, as explained by the evidence herein, was to do some stripping of the top soil, brush and timber of the gravel strata in preparation for removal of gravel for processing, to produce gravel and place it on the roads and streets in accordance with the contract requirements and also to level the streets. In order for the plaintiffs to do this, it was necessary for the defendants to complete the utility work under the contract with the Government of the United States consisting of sewer lines and water lines. The Glasgow Air Force Base was laid out in blocks, with streets laid out at the sides. The water and sewer lines were not to be placed under but along the sides of the streets. But these lines crossed the streets at various places, and until the lines were so laid across, there were only short segments between the crossings which were too short for the operation of the machinery used by plaintiffs in placing the gravel on the streets and leveling them. In accordance with the letter above set out, plaintiffs, appellees, arrived at the Air Force base on July 13, 1955, but found that the water and sewer lines had not been laid by the defendants as required so as to enable them to place any gravel on the lines laid out for roads and streets. They did some stripping commencing about July 21 and July 28, 1955, but according to the testimony of Willard N. Rasmussen, this work was of no benefit in connection with the performance of the contract in that stripping should be done at the same time when the gravel is produced, but he employed some of his laborers in stripping so as to keep them away from the saloons.

There is some testimony in the case with reference to some gravel production being done in the...