Associated Engineers & Contractors, Inc. v. State , 58 Haw. 322 ( 1977 )

568 P.2d 512 (1977)

ASSOCIATED ENGINEERS & CONTRACTORS, INC., and Chris Berg, Inc., Plaintiffs-Appellees, Cross-Appellants,
v.
STATE of Hawaii, Defendant-Appellant, Cross-Appellee.

No. 5595.

Supreme Court of Hawaii.

September 9, 1977.

Arthur B. Reinwald, Dennis E.W. O'Connor and Richard K. Quinn, Honolulu (Anthony, Hoddick, Reinwald & O'Connor, Honolulu, of counsel), for plaintiffs-appellees, cross-appellants.

Before RICHARDSON, C.J., OGATA, MENOR and KIDWELL, JJ., and KATO, Circuit Judge in place of KOBAYASHI, J., disqualified.

PER CURIAM.

Plaintiff-Appellees, Cross-Appellants (Contractor) seek a rehearing of this appeal.

It is argued that denial of the State's motion to amend, if erroneous, was not prejudicial because the trial judge had announced that he regarded the evidence as insufficient to prove the defense that the Contractor had practiced or attempted to practice fraud in the proof of its claim. Our opinion determines that the evidence before the trial judge, if presented in a trial of the issue and viewed in the light most favorable to the State, would have prima facie established the defense. The opinion of the trial judge to the contrary was erroneous and provides no support for the Contractor.

The Contractor contended in the briefs and oral argument that it was relieved from weather delays because timely performance was impossible at the outset of the contract or was caused by the State, and also that the Contractor was entitled under the contract to extensions of time for bad weather. We held against the Contractor on those arguments. In seeking a rehearing, the Contractor argues that nevertheless bad weather which delayed performance constituted impossibility which relieved the Contractor from liability for late performance. A question not previously raised in the course of an appeal will not ordinarily be considered on a petition for rehearing. State v. Kahua Ranch, 47 Haw. 466, 390 P.2d 737 (1964); Independent Wireless Telegraph Co. v. Radio Corp., 270 U.S. 84, 46 S. Ct. 224, 70 L. Ed. 481 (1926); 5 Am.Jur.2d Appeal and Error § 987 (1962). Moreover, the risk of abnormal weather is commonly held to be assumed by a construction contractor, except where provision otherwise is made in the contract or the parties are not equal in their knowledge of relevant weather data. Hardeman-Monier-Hutcherson v. United States, 458 F.2d 1364, 198 Ct. Cl. 472 (1972). The authorities cited in the petition for rehearing do not contradict this proposition, which has underlain the contentions previously advanced in this case by the Contractor. We see no justification for a rehearing of this appeal.

The petition for rehearing is denied without argument.