Sydnor Pump & Well Co. Inc v. County Sch. Bd. Of Henrico County
| Citation | 28 S.E.2d 33,182 Va. 156 |
| Court | Virginia Supreme Court |
| Decision Date | 06 December 1943 |
| Parties | SYDNOR PUMP & WELL CO., Inc. v. COUNTY SCHOOL BOARD OF HENRICO COUNTY et al. |
Appeal from Circuit Court, Henrico County; Julien Gunn, Judge.
Suit in equity by Sydnor Pump & Well Company, Inc., against the County School Board of Henrico County and others, to have declared void an alleged arbitration award which grew out of a school building contract between the School Board and J. W. Atkinson, general contractor, and if the award should be held valid that it be held not binding on the complainant, and to recover judgment against W. F. Gerhardt. From an adverse decree, the complainant appeals.
Reversed, decree rendered in favor of complainant against Gerhardt, and cause remanded.
Before CAMPBELL, C. J., and HUD-GINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.
Alex W. Parker and T. Munford Boyd, both of Richmond, and Miles Poindexter, II, of University, for appellant.
Harold M. Ratcliffe, M. J. Fulton, and Louis S. Herrink, all of Richmond, for appellees.
The appellant, Sydnor Pump and Well Company, Inc., was the complainant below, and filed its suit in equity against the County School Board of Henrico County, J. W. Atkinson and W. F. Gerhardt as defendants. The purpose of the suit was to have declared void an alleged arbitration award which grew out of a certain school building contract between the County School Board, on the one hand, and J. W. Atkinson, general contractor, on the other. If the award is held valid, then the prayer is that it be held not binding on the complainant, and, further, the complainant asks for a judgment against W. F. Gerhardt for $1,212.20 with interest and costs.
The court below denied every ground of relief. It held the award of the arbitrators valid and binding upon all the parties including the complainant and that the complainant was not entitled to a judgment against Gerhardt. Costs were awarded against the complainant.
There is no dispute about the material facts. The contract was made between the County School Board and J. W. Atkinson, general contractor. It comprehended that portions of the work would be let to subcontractors. W. F. Gerhardt was a subcontractor, agreeing to perform all of the plumbing including the drilling of a well. The appellant for many years had operated a business which was that of drilling wells and it became a sub-subcontractor under Gerhardt for the drilling of the well required under the original contract. Its contract consisted of certain proposals embraced in the specifications for the construction of the school building. Those pro-posals were the basis upon which the appellant made its bid and read thus:
These proposals were considered by the appellant and through its proper agents a bid was made for the job of drilling the well. It was in writing addressed to Gerhardt and in this language:
The bid of the appellant was duly accepted and the contract closed. Special attention is directed to the proposals which required the appellant to segregate (a) the cost per lineal foot for a depth beyond 200 feet from the surface and (b) the additional cost per lineal foot "for drilling 6" inside diameter hole through rock if encountered" because the appellant's claim, as we will see later, has its background in those extra items. In response to those directions the appellant did segregate those items in its bid as will be observed by a reference to it.
The two events which the parties hoped would not happen actually did happen. First, the well had to be drilled more than 200 feet. Actually it was drilled to a depth of 393 feet and 9 inches, in order to obtain the required flow. Secondly, rock was encountered at a depth of 23 feet and 6 inches, and from that point to completion it was drilled through rock for 370 feet and 3 inches. Accordingly, the appellant billed Gerhardt as follows:
Bills in like amount were sent by Gerhardt to the general contractor, Atkinson, and by him sent to the School Board. All but $1,212.20 has been paid on the account. Payment of that balance was refused by the School Board, Atkinson and Gerhardt, though Gerhardt in his letter transmitting the account to Atkinson expressed satisfac-tion with the account. He wrote that the well complied with the plans and specifications and with his contract. He also wrote that the extras shown on the account for drilling through rock and for drilling below 200 feet were correct. He requested that the account be paid.
The reason assigned by the School Board for its refusal to pay the account is contained in a letter from the Director of School Buildings to J. W. Atkinson. The Director construed the appellant's contract with Gerhardt to mean that appellant was to receive only $6 per foot below the 200 feet, regardless of whether the drilling was through solid rock or through earth without any rock.
The appellant looked to Gerhardt for payment of the account. It was made to him because the contract was with him. The appellant, failing in his efforts to collect the account, elected to arbitrate the matter in accord with the terms of the dominant contract between the School Board and Atkinson, general contractor. Atkinson agreed to represent the appellant in the arbitration and to present his account. The arbitration, in form was to be between Atkinson and the School Board, but in substance it was to be between the appellant and Gerhardt. However, if an award had been made against Gerhardt, he, in turn, would have looked to Atkinson, and the latter to the School Board...
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