Frank T. Hickey, Inc. v. Los Angeles Jewish Community Council

Appeal by defendants from a judgment in favor of plaintiff for money and for a decree of foreclosure of a mechanic’s lien. The dispute involves charges made by plaintiff for claimed extra labor, material, and equipment furnished under a subcontract with defendant Contracting Engineers Company for the construction of a building for defendant Los Angeles Jewish Community Council.

On May 2, 1950, defendant Contracting Engineers Company, a partnership, as general contractor, and defendant Los Angeles Jewish Community Council, a corporation, as owner, entered into a contract for the construction of the Jewish Community Council Building on the corner of Vermont and Clinton Avenues, in Los Angeles. The building was to consist of two wings, one on Vermont and one on Clinton, with a rotunda connecting the two. On May 15, 1950, plaintiff, a corporation, and the general contractor entered into a subcontract whereby plaintiff agreed for $31,200 to: (1) remove trees, except those designated by the architect; (2) remove foundations from temporary buildings and old concrete residences; (3) demolish and remove walls, walks, and paving from the site; (4) excavate by machine for the building, including footings; (5) excavate and grade to

The subcontract provided: “No modification of the contract price shall be made and no work of lesser value than that called for in the plans and specifications shall be accepted, except upon written change order signed by one of the partners of the contractor.” It also stated that the subcontractor waived any and all claims on the general contractor for damages for any act, omission or delay caused by the contractor, the owner, or any other subcontractor, and undertook the work subject to all conditions as they then existed or may arise. The plans and specifications were incorporated by reference into the subcontract. The prime contract provided for completion of construction in 11 months. Plaintiff commenced work on May 22, 1950, but because of delays— not due to its fault—it was unable to complete the job until November 30, 1951, 18 months later.

Nine temporary buildings were located on the premises and walks connected them. Plaintiff was not told by what particular date the buildings would be removed. They remained on the premises during the greater part of the time that construction was going on. Community Council used the property during the entire period and continued the operation of its business as a community center without interruption ; only when it was able to move into the new building were seven of the older buildings and the walks demolished.

On October 31, 1951, plaintiff billed the general contractor (Invoice 9475) for $1,350—removing 900 cubic yards from the site at the rate of $.90 a cubic yard plus $.60 a cubic yard for extra distance the dirt had to be hauled—claimed to be extras. On November 30, 1951, plaintiff billed the general contractor (Invoice 9489) for $2,700—hauling 3,000 cubic yards to the site between July 31 and September 13, 1950, at $.45 a cubic yard, $1,350, and removing an equal amount from the site in November 1951, at $.45 a cubic yard, $1,350— claimed to be extras. On December 4, 1951, plaintiff billed

The subcontract contemplated that plaintiff would excavate material from the building site, stockpile it, and use it for backfill on the site. Because of conditions created by the owner and the general contractor, plaintiff was compelled to remove the material from the site and thereafter obtain backfill from sources away from the site. Backfilling was done in August and September, 1950. There was no material available for backfilling at that time since plaintiff could not excavate. When plaintiff’s superintendent advised the general contractor that it would be necessary to get the dirt away from the site, the latter said he had no remedy but “The job has to go on and we must have fill in the building.” In November, 1951, the temporary buildings used by the Community Council had been removed; plaintiff was able to excavate but was compelled to haul the material away from the site because there was no more backfilling to be done. Defendants having compelled plaintiff to obtain dirt for backfilling away from the site and to haul an equivalent amount away, the evidence supports the finding that defendants authorized, requested, and accepted each item of extra work for which an award may be made.

Extra work as used in connection with a building contract means work of a character arising outside and entirely independent of the contract—something not required in its performance, not contemplated by the parties, and not controlled by the contract. (Wilson v. Salt Lake City, 52 Utah 506 [ 174 P. 847 ]; Shields v. New York, 84 App.Div. 502 [ 82 N.Y.S. 1020 ].) Whether a contractor is entitled to additional compensation for extra work depends generally on the construction of the particular contract and whether it is included in the contract price. The construction placed on the contract by the parties is of great weight, and where they agree on additional compensation for certain work it precludes a claim that the original contract requires the performance of such work. (Board of Comrs. of Fulton County v. Gibson, 158 Ind. 471 [ 63 N.E. 982 ].) When plaintiff computed its bid, the parties contemplated it would use dirt excavated from the job site as backfill. When it found none was available, its superintendent discussed

Where the extra work and materials furnished are of the same character as the work and materials named in the contract, the general rule is that they are to be paid for according to the schedule of prices fixed by the contract. (17 C.J.S. 854, § 371 h.) The contract provides, “Unit Price for Machine Excavation $.90 per cu. yd. Unit Price for Machine Back Fill $.45 [per cubic yard].” The unit price of $.90 included the shovel operation in excavating, loading the dirt onto trucks, and hauling it away. The unit price of $.45 included the shovel operation of loading the dirt onto trucks, depositing it in place on the site, and spreading and compacting it. It did not include excavation or hauling. Therefore $.45, the difference between the schedule of prices, jvas the cost of excavation and hauling. One of the charges stated in Invoice 9489 was for bringing 3,000 cubic yards of backfill onto the site at the rate of $.45 a cubic yard—a total of $1,350. While the applied rate is correct for hauling the extra dirt onto the premises, it is erroneous as to the amount of dirt for which defendants should be charged. It was stipulated that plaintiff did not have to pay anything for 1,000 of the 3,000 cubic yards or for the transportation of it. Plaintiff may not recover from defendants for this amount of backfill. It was error for the trial court to award plaintiff $1,350 for this item. One thousand cubic yards at $.45 is $450. The amount should have been $900 ($1,350 less $450).

It was contemplated that more dirt would be excavated than would be needed for backfilling and that the excess would have to be hauled away. The bringing of 3,000 cubic yards of material onto the job site added to the excess and thereby necessitated the removal of a like amount. Plaintiff included in its Invoice 9489 a charge for the removal of 3,000 cubic yards, at the rate of $.45 a cubic yard. This charge for additional costs was correct and plaintiff is entitled to recover $1,350 for this extra work.

Haddock, by agreement between the general con

Ordinarily, as between a subcontractor and the contractor who is in control of the work being performed, the law places the latter under an obligation to make good all losses consequent on delays in the progress of the work not attributable to the subcontractor. However, this rule may be made inapplicable by the express provisions of the subcontract. (Stelilin-Miller-Henes Co. v. City of Bridgeport, 97 Conn. 657 [ 117 A. 811 ]; Walter B. Cliffe Co. v. Du Pont Engineering Co., 298 F. 649 .) Here the subcontract expressly states that plaintiff waives any and all claims on the general contractor for damages for any act, omission or delay caused by the general contractor, or the Community Council, and undertakes the work subject to all conditions as they now exist or may arise. This waiver of all claims for damages due to any delay estops plaintiff from recovering the additional cost of hauling the excavated material a greater distance to the new disposal site. It was error to allow plaintiff the additional rate of $.60 a cubic yard, or $540.

Defendants contend that because a change had been made in the grade of the parking area which resulted in the retention on the job site of 2,171 cubic yards of more dirt than would have been kept had the plans not been changed, plaintiff did not remove an additional 900 cubic yards from the premises. The trial court found that 2,171 cubic yards of

The risk of fluctuations in the market price of labor and materials is a burden which a subcontractor contemplates and assumes when he makes a contract. He takes the risk of an increase of the prices of labor and materials. (9 Am. Jur. 42, § 56.) Plaintiff could have provided for these contingencies in the contract by the inclusion of an escalator clause—as costs increase so would its consideration.

Plaintiff expressly waived any rights that it might have had due to the delay in the performance of the contract. (17 C.J.S. 1060, § 502b (3) (c).) It may not recover for the alleged increases in costs of labor, $95.15; dump truck rentals, $919.39; shovel and truck crane rentals, $313.15; and hauling 3,000 cubic yards of dirt the extra distance, $1,800; as outlined in its letter of December 4. It was error to award plaintiff these items as extras—$3,127.69.

The first thing that plaintiff did in the performance of its contract was to remove certain trees that had been designated by Community Council. Seventeen months later the council required an additional 10 or 12 trees to be removed. In the letter of December 4, 1951, plaintiff billed the general contractor for $295 for removing the 10 or 12 trees. The trees designated were removed in June, 1950. At that time plaintiff and defendants orally modified the original plan as to the number and which trees were to be removed. Seventeen months later the council decided to have additional trees removed. There is no evidence that at the time the trees were removed in June, 1950, or at any

Defendants claim that plaintiff did. not remove all top soil from the building site and store it in piles, and that they should have been awarded $300 therefor on their counterclaim. The evidence supports the court’s denial of this item. The Community Council’s “Clerk of the Work” testified there was no top soil on the site. Defendants claim plaintiff did not strip the existing surface for the parking area to a depth of 10 inches, and that they should have been awarded $2,600 therefor on their counterclaim. The evidence supports the court’s denial of this item. The “Clerk of the Work” testified he knew of no place where plaintiff should have stripped that it did not strip. Defendants claim that plaintiff did not remove a retaining wall, and that they should have been awarded $250 therefor on their counterclaim. The evidence supports the court’s denial of this item. The “Clerk of the Work” testified plaintiff was to leave the wall alone. Plaintiff squared off the wall at a greater cost to it than had it been called on to remove it. The “Clerk of the Work” testified that before plaintiff left the job he (the clerk) went around with the superintendent of the general contractor and that he said to the latter, “ ‘Is there anything more this fellow Hickey has got to do before we turn him loose,’ and the answer was, ‘No, he is through.’ ”

The finding that the reasonable value of all of the labor, materials, and equipment furnished by plaintiff under the contract and for the extra work and equipment authorized and requested by defendants and accepted by them over and above all amounts previously paid plaintiff by defendants is $8,841.50, is not supported by the evidence. This finding

The findings of fact and the conclusions of law are amended in the respects we have indicated. The judgment is modified by reducing the amount thereof from $8,841.50 to $4,321.21, together with interest from January 5, 1952, less the setoff of $704. As thus modified, it is affirmed. The parties shall bear their own costs on appeal.

Shinn, P. J., and Wood (Parker), J., concurred.

A petition for a rehearing was denied November 30, 1954.