Boomer v. Abbett

This action, tried by the court without a jury, grew out of a subcontract entered into by plaintiff copartnership with defendant Abbett under a prime contract between said Abbett and the United States Bureau of Reclamation. The prime contract was to construct a transmission line in

Some five months after the contracts were let, the bureau, which had not test drilled the dredger tailings area theretofore, did so. The tests showed that a considerable amount of excavation would be required. In the prime contract the bureau’s contracting officer was entitled to “make changes in the drawings and/or specifications of this contract and within the general scope thereof.” He also had the right to modify the contract “to provide for any increase or decrease of cost” resulting from “subsurface and/or latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications ...” Under these provisions and as the excavation in the dredger tailings area was completely dissimilar to the excavation elsewhere on the transmission lines, the bureau issued revised drawings and made change order Number 2. This ordered changes in the heights of 12 towers in the dredger area and in the nature and depth of the exea

1. Law of the Case.

Plaintiffs contend that the previous decision of this court constituted a finding on the facts of the case and that the evidence should be examined only to determine if it is substantially the same as previously. Defendant contends to the contrary. In the prior decision this court discussed and determined that (1) as to the protest provisions of the contracts, there was presented a question of fact whether defendant and plaintiffs complied, and the jury could have found that plaintiffs protested sufficiently to comply with the protest clause and any failure was due to the fault of defendant (p. 459) ; (2) it was a jury question whether change order Number 2 provided for or contemplated excavation of a type already committed to plaintiffs under the “common excavation” clause of the contracts and, thus, the jury could have found the issuance of the change order to be a breach by the bureau and in turn by defendant (at p. 460); (3) the disputes clause did not extend to questions arising out of breach of contract (p. 462); (4) as to the effect of change order Number 3, it was a question of fact for the jury where there was evidence that this deletion was a material alteration that defeated the object of the contract by prevention of the completion of the object of the contract (p. 463). There was no material difference in the evidence presented at this trial from that at the former trial; hence that decision is the law of the ease insofar as the points there discussed and determined. But

2. Was There a Breach of the Subcontract?

As we stated in the prior decision the contract was one to excavate for a transmission line and not to excavate for about 225 towers, that under the evidence it was for the jury to determine whether the deletion of the towers materially altered the fundamental object of the contract or merely provided for a deletion incidental to the contract’s primary object. Coupled with this was the question as to whether the excavation for the towers was of a type already committed to plaintiff under the “common excavation” clause of the contract. The trier of the fact now has so determined. We said in the prior decision there was substantial evidence which would support such a finding. Likewise here there is such evidence. Hence the failure to permit plaintiffs to do this work under the contract constituted a breach of it. The dredger tailings could not be considered “unusual” since change order Number 2 specifically states that it was made pursuant to article 3 of the contract. In the prior decision we said (pp. 460-461) : “In the instant case there was conflicting evidence and inferences therefrom as to the meaning of ‘overburden’ and of ‘common excavation,’ and over whether the latter included the former. The specifications define various types of excavation in paragraph 33 and then make ‘common excavation’ the residual class. In paragraph 34 the excavation portions of paragraph 33 are made applicable to ‘excavation in loose or unstable soil,’ and expressly made applicable to excavation by power-driven machinery other than augers. (See also for definition of ‘excavation,’ United States v. Blauner Const. Co., 37 F. Supp. 968 .) Certainly it was a factual question as to whether the change order provided for or contemplated excavation of a type already committed to appellants under the ‘common excavation’ clause of their contract. If the jury had found that the prime and subcontracts included the removal of the overburden, then the jury could have found that the issuance of change order No. 2, insofar as it attempted to change the method of payment for common excavation work on the 12 towers, was a breach of the contract by the bureau, and in turn by respondent. ’ ’ The trier of the fact now so found.

Applicable here is the language in Hensler v. City of Los Angeles, 124 Cal.App.2d 71 , 79 [ 268 P.2d 12 ]: “The power vested in the engineer to effect changes in the quantities of the work is not so extensive as to enable him to abrogate or change the contract which the parties executed (Brown v. Coffee, 17 Cal.App. 381 [ 121 P. 309 , 311] ; Monson v. Fischer, 118 Cal.App. 503 [ 5 P.2d 628 ]), nor does it authorize defendant to employ such right to defeat the object of the contract which is reasonably deducible from its terms. The changes which may be ordered, when viewed against the background of the work described in the contract and the language used in the specifications, must clearly be directed either to the achievement of a more satisfactory improvement or the elimination of work not integrally necessary to the project.”

Also applicable is the following from the previous decision (121 Cal.App.2d at p. 464): “Under the cases, if the contract imposes a duty on the government to complete the construction of the structure involved in the contract, a ‘changes’ clause does not authorize the deletion of an integral part of the work. [Citations.] These cases establish the law to be that under a changes clause the government has no power to change the essential nature or main purpose of the contract, but may only make changes incidental to the primary object of the contract. The change order under such clauses may not essentially alter the project contemplated by the contract.”

Paragraph 11 of the specifications provides that the government will be relieved from all liability where Congress fails to appropriate the necessary money if the contract extends beyond the current fiscal year. Thomson, the contracting officer, testified that the reason for stopping work in the dredger tailing area was the dispute and that the contract was finally cancelled because the bureau was running out of money. However, there was no evidence that it was due to Congress’ failure to appropriate money and the court found that the deletion was because of the dispute and in order to

3. Was Plaintiffs’ Action Barred Because of Failure to Protest Change Order Number 3?

Paragraph 13 of the specifications provides that if the contractor considers any ruling of the contracting officer or of the inspectors to be unfair he must ask in writing for written instructions or decision whereupon he shall proceed without delay to perform the work or conform to the ruling, and after receipt of the written instructions or decision he shall within 20 days file a written protest. Unless this is done the rulings or decisions of the contracting officer shall be final and conclusive.

Since the paragraph above requires that the contractor continue to work while the protest is lodged, the paragraph is applicable to work ordered and not to cancellation of a part of the contract. Moreover, plaintiffs did submit to defendant a number of letters for cancellation charges including that for loss of profits. This could be considered a protest.

As to the defendant’s contention that plaintiffs accepted the cancellation, the evidence is conflicting with the plaintiffs ’ denying that they so accepted. Thus, there was sufficient evidence upon which to conclude plaintiffs did not accept the cancellation.

Assuming that the plaintiffs failed to protest the cancellation under paragraph 13, they still would not be precluded from recovery. As stated in the prior appeal, “Thus the jury could have found that change order No. 2 was a breach . . . The breach occurred prior to any attempt by the bureau to discontinue work in the area and the right to damages accrued before change order No. 3 and the stop order were issued.” (121 Cal.App.2d at 462.)

4. Damages.

Defendant contends that plaintiffs did not prove damage, because it claims that plaintiffs had no prospective profits under the contract because they were losing money on the excavation outside the dredger tailings area. However, there was no evidence that plaintiffs would not have recouped their losses on the work they were prevented from doing. The evidence was to the contrary.

Defendant contends that the allowance for loss of

5. Exclusion of Evidence.

The court sustained objections to questions asked civil engineer Kuykendall whether any excavation described in the detail drawings called for use of a bulldozer or dragline, whether any excavation could be done by such machines without disturbing the walls of the neat lines required, whether he would have permitted such equipment to be used for the “hand dug” excavations, and also how the excavation would have been made in the dredger tailings area if no change order had been issued. Likewise, an objection was sustained to a question asked Thomson as to whether he ever authorized any excavation on the other 206 towers to be made by a bulldozer. We can see no error in this ruling. The questions" called for the witnesses’ interpretation of the contract. Moreover, the contract provided that equipment of that kind could be used, and there was evidence that such equipment actually was used in the areas to be “hand dug.”

6. Did the Trial Judge Prevent a Fair Trial?

Defendant contends, that the trial judge prejudged the issues. The judge from time to time commented on the evidence and on occasion indicated that he disbelieved certain witnesses. The statements were made in the discussions between court and counsel in rulings and in determining the position of counsel on various issues. There being no jury, this was his right. On several occasions he pointed out that

The judgment is affirmed.

Peters, P. J., and Wood (Fred B.), J., concurred.

A petition for a rehearing was denied November 6, 1957, and appellants’ petition for a hearing by the Supreme Court was denied December 4, 1957.