Walter R. Cliffe Co. v. Du Pont Engineering Co.

• Decision Date: 09 April 1924
• Docket Number: 1.
• Citation: 298 F. 649
• Parties: WALTER R. CLIFFE CO. v. DU PONT ENGINEERING CO.
• Court: U.S. District Court — District of Delaware

298 F. 649

WALTER R. CLIFFE CO. v. DU PONT ENGINEERING CO.

No. 1.

United States District Court, D. Delaware.

April 9, 1924

Robert H. Richards and James I. Boyce, both of Wilmington, Del., for plaintiff.

William S. Hilles and J. P. Laffey, both of Wilmington, Del., for

MORRIS District Judge.

Du Pont Engineering Company, the defendant, and 'the mayor and council of Wilmington,' acting upon the recommendation of the board of harbor commissioners, entered into a general contract for the construction by the former of unit No. 1, Wilmington marine terminal, on the Christiana river. Soon thereafter the defendant entered into four several contracts with the plaintiff, Walter R. Cliffe Company, whereby the latter undertook to perform by August 12, 1922, or sooner, all the work called for by four several items of defendant's primary contract. The plaintiff construing each of the four subcontracts to contain implied covenants that the defendant would permit the plaintiff to complete the work therein called for within the time therein specified, and that the defendant would pay unliquidated damages for any delays in the completion of the work not attributable to the plaintiff, instituted this action of covenant to recover damages from the defendant for its alleged breach of such implied undertakings. The declaration contains four counts, in each of which the primary contract and a different one of the subcontracts are set out in haec verba. The alleged breach is that the defendant hindered and delayed the plaintiff from performing and completing its work during the time provided therefor in the subcontract.

To each of these counts the defendant has demurred, and by certain of the causes of demurrer assigned challenges the correctness of plaintiff's assumption that the contracts give rise to the implied covenants for whose breach the plaintiff sues or if such covenants may be implied, the right of plaintiff to recover damages for their breach. The issue of law thus raised turns, in the main, upon articles 3, 4, and 5 of the subcontracts and paragraph 498 of the primary contract, which read thus:

'Article 3. The subcontractor and the contractor agree to be bound by the terms of the aforesaid terminal contract, including the general conditions, drawings, and specifications forming a part thereof, or as same may be modified and/or supplemented by this subcontract, so far as applicable to the work hereunder.

'Article 4. The subcontractor agrees to assume toward the contractor all the obligations and responsibilities, so far as applicable to this subcontract, that the contractor, by its contract, assumes toward the commissioners.

'Article 5. The terminal contract hereinbefore referred to between the Du Pont Engineering Company and the city of Wilmington specifies that the entire work covered under the same shall be completed on or before August 12, 1922. The subcontractor hereunder agrees to commence the work comprehended under this contract on or before September 8, 1921, and to complete the several portions and the whole of the said work by August 12, 1922, or sooner, provided that the prosecution of the several portions of the work covered by other subcontracts will permit this subcontractor to carry on its work in such a manner as to complete as above specified. It is mutually agreed that time is of the essence of this contract, and that damages to the contractor for failure of the subcontractor to fully complete the work on or before August 12, 1922, shall be twenty-five dollars ($25.00) for each day after said date, Sundays and holidays excepted, that shall elapse before the work shall be fully completed, which amount shall in no event be considered as a penalty, but as liquidated and adjusted damages due the contractor because of said delay, which damages the subcontractor shall promptly pay, and the contractor may retain the amount thereof from any moneys which otherwise would be payable hereunder to the subcontractor.'

'498. Hindrances and Delays.-- No charge shall be made by the contractor for hindrances or delays from any cause whatever during the progress of any portion of the work contemplated by the specifications, but the commissioners may grant an extension of time for the completion of the work, provided they are satisfied such delays or hindrances were due to extraordinary causes, or to acts of omission or commission by the commissioners, but such extensions of time shall in no instance exceed the time actually lost to the contractor by reason of such causes, provided the contractor shall give the

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