Summit Elec., Inc. v. Pepin Bros. Const., Inc., 80-142

• Decision Date: 16 March 1981
• Docket Number: No. 80-142,80-142
• Citation: 121 N.H. 203,427 A.2d 505
• Parties: SUMMIT ELECTRIC, INC. v. PEPIN BROTHERS CONSTRUCTION, INC. PEPIN BROTHERS CONSTRUCTION, INC. v. John A. CLEMENTS, Commissioner of Public Works and Highways.
• Court: New Hampshire Supreme Court

Page 505

427 A.2d 505

121 N.H. 203

SUMMIT ELECTRIC, INC. v. PEPIN BROTHERS CONSTRUCTION, INC.

PEPIN BROTHERS CONSTRUCTION, INC. v. John A. CLEMENTS, Commissioner of Public Works and Highways.

No. 80-142.

Supreme Court of New Hampshire.

March 16, 1981.

Ransmeier & Spellman, Concord (Lawrence S. Smith, Concord, orally), for Summit Electric, Inc.

Perkins, Phillips & Waters, Concord (Roger B. Phillips, Concord, orally), for Pepin Bros. Const., Inc.

Gregory H. Smith, Acting Atty. Gen. (Edward L. Cross, Jr., Concord, Attorney, orally), for State.

DOUGLAS, Justice.

These consolidated cases involve a dispute between the State, the general contractor, and the subcontractor over the terms of a construction contract. The disagreement centers around the work to be done under two divisions of the State's contract specifications: Division 10, entitled "Specialties," and Division 16, entitled "Electrical." The "Specialties" section of a construction contract is usually performed by the general contractor; the "Electrical" section is usually performed by the electrical subcontractor.

Before submitting a bid on a State contract to renovate the Pleasant View Home in Concord, Pepin Brothers Construction requested an oral interpretation of the contract specifications from the State's architect because both the "Specialties" section and the "Electrical" section referred to illuminated exit signs. The architect informed Pepin that the "Specialties" section called for the general contractor to repair the existing system and the "Electrical" section required the electrical subcontractor to install the new signs. Pepin never asked the architect to issue an addendum to the specifications. On September 24, 1976, Pepin entered into a contract with the State in which it agreed "to furnish and deliver all the materials and to do and perform all the work and labor" for the renovation.

Pepin later entered into a subcontract with Summit Electric, under which Summit agreed to do the work required by the "Electrical" division of the State contract specifications. At that time, the specifications referred to a remote annunciator system but did not include schematic wiring diagrams for installation of the system, and they did not contain narrative requiring the electrician to install illuminated exit signs.

After the renovation work had begun, Pepin and Summit began to disagree over two items of work: installation of the illuminated exit signs and installation of the remote annunciator system. Summit argued that it was not required to install the exit signs because Pepin was required to do so under the "Specialties" section, and that it was not required to install the wiring for the remote annunciator system because the specifications contained no schematic diagram. Summit agreed to install the exit signs, reserving its rights against Pepin, but refused to complete the annunciator system. Pepin hired another electrician to do this work.

After completion of all of the work, Summit brought suit against Pepin for money due under the contract and for the cost of installing the illuminated exit signs. Pepin counterclaimed for the cost of installing the remote annunciator system. It also brought suit against the State for the cost of the "extra work" in installing the exit signs and the annunciator system. The cases were consolidated for trial before the Master (John C. Fairbanks, Esq.) who recommended decisions against Pepin in both actions. The Superior Court (Souter, J.) approved the master's recommendations. Pepin appeals, arguing that the master's findings are inconsistent and against the weight of the evidence. We uphold the findings of the master.

The standard of review in an appeal from a master's recommendation is that the findings and rulings will be upheld unless they are unsupported by the evidence or are erroneous as a matter of law. Hynes v. Whitehouse, 120 N.H. 417, 415 A.2d 876, 878 (1980); Brown v. Mary Hitchcock Memorial Hosp., 117 N.H. 739, 742, 378 A.2d 1138, 1140 (1977).

Pepin's first argument is that the master's findings and rulings are inconsistent as a matter of law because he gave contradictory interpretations to the same sections of a contract. That argument mistakenly assumes that there is only one contract at issue when, in fact, there are two: the agreement between Pepin and the State and the agreement between Pepin and Summit.

In order to interpret each of these two contracts, a court must determine the intention of the parties at the time they were made. Erin Food Serv., Inc. v. 688 Prop., 119 N.H. 232, 235, 401 A.2d 201, 203 (1979). A court must consider not only the written instrument but also the situation of the parties. Thiem v. Thomas, 119 N.H. 598, 602, 406 A.2d 115, 118 (1979). In this case, the situations of the parties at the time they entered into their agreements were different. For example, Pepin was aware of the State's interpretation of Division 16, but Summit was not. It, therefore, was not erroneous as a matter of law for the master to find that the two sets of parties intended Division 16 to mean different things in the different contracts, even though the language was the same.

Pepin next argues that the master's findings are against the weight of the evidence because he found Division 16 to be clear and unambiguous in Pepin's contract with the State and ambiguous and vague in Pepin's contract with Summit. That, however, is not what the master found. We will discuss the master's actual findings individually at the same time we discuss whether those findings are supported by the evidence.

In the contract between Pepin and the State, the master found that the provisions requiring installation of the illuminated exit light system were clear and unambiguous. To the extent that the contract called for the installation of an exit system, it is clear and unambiguous. In its written contract with the State, Pepin agreed to do all...