Benton County v. Oliver Const. Co.

The appellee, the Oliver Construction Company, sued the fifth supervisors' district of Benton county for an alleged balance of two thousand twelve dollars and fifty-four cents, claimed to be due the company for clearing and grubbing done in the construction of the Bankhead highway, known as federal aid project No. 22, eleven and eight-tenths miles in length. The lower court directed a verdict for two thousand twelve dollars and fifty-four cents in favor of the construction company, from which decision Benton county appeals.

The question involved is whether the clearing and grubbing of the eleven and eight-tenths miles of road was let for a lump sum, or whether the bid and letting was on a unit basis; that is, on a basis of acreage to be cleared and grubbed in the construction of the project of eleven and eight-tenths miles. If the contract was that the clearing and grubbing of the entire project was to be paid for on a lump sum basis, then the appellant, Benton county, must be successful in this litigation, but, on the other hand, if the contract for the clearing and grubbing was upon a unit or acreage basis, then the construction company should recover.

The state highway department prepared the specifications, proposal, contract, and bond for the construction of project No. 22, federal aid road, known as Myrtle-Potts Camp road, between Tupelo and Memphis, in Benton county, to be of gravel surface, and eleven and eight-tenths miles in length.

The specifications and proposal for this project were prepared and bids advertised for; and the notice to road contractors provided, among other things, that "the length of road to be improved or constructed is eleven and eight-tenths miles." The specifications and proposal for the construction of a road eleven and eight-tenths miles in length were made a part of the contract for its construction.

Appellee, the Oliver Construction Company, submitted its proposal to construct the road, which proposal was accepted and thereby became the contract between the construction company and the county. The proposal provided, among other things, that the Oliver Construction Company would do the "clearing and grubbing for five hundred dollars lump sum." The form of letting provided that the bid on the clearing and grubbing must be for a lump sum. The specifications, which are a part of the contract, also provided as follows:

"(1) Clearing and grubbing will, in the absence of a special clause to the contrary, be paid for at the lump sum rate for the entire project mentioned in the proposal. Where partial payments are made, these will be based on the percentage finished of the total clearing and grubbing specified. Payments made on this basis shall be full compensation for all work specified under the subheading `Clearing and Grubbing.' In cases of change in location involving an increased amount of clearing and grubbing, a proportional allowance for such increase will be made."

It will be noted the specifications expressly provide that this character of work, namely, clearing and grubbing, must be bid and paid for at "the lump sum rate for the entire project mentioned in the proposal."

The exact form used by the construction company in its proposal to construct the road, which proposal became the contract in the case, was, so far as is pertinent, as follows:

------------------------------------------------------------------------- | | | | Unit Bid | Amount | | Items | Approximate | Items with Unit Bid | Price. | Bid | | No. | Quantities. | Price Written in Words. |----------|---------| | | | | | | |-------|--------------|-----------------------------|----------|---------| | 1 | 11.8 Acres | Clearing and grubbing for | $ Cts. | $ Cts. | | | | five hundred dollars lump |__________|_________| | | | sum. | | $500 00 | -------------------------------------------------------------------------

It will be observed the figures 11.8 acres appear in the column of "Approximate quantities." Then in the next space to the right appears the "Clearing and grubbing for five hundred dollars lump sum." It will be seen, further, that the column for "Unit Bid Price" is blank, and then on to the right in the column of "Amount Bid" is five hundred dollars.

It is the contention of the appellee, construction company, that it was entitled to pay on the basis of five hundred dollars for eleven and eight-tenths acres, or about forty-two dollars per acre for each acre cleared and grubbed on the eleven and eight-tenths miles road project. It is claimed by appellee that the contract as proposed and accepted, was to clear and grub the project on an acreage basis of eleven and eight tenths acres at the lump sum of five hundred dollars and payment to be made at a "lump sum rate," or proportional rate for each acre in the entire project; and that, as the construction company cleared and grubbed fifty-nine acres of the road project. This is about as clear as we can pre-acre, it was entitled to two thousand twelve dollars and fifty-four cents additional to the five hundred dollars lump sum bid and received, to cover the additional forty-eight acres cleared and grubbed.

The argument is put forth that the "payment to be made at a lump sum rate" means that the bid of five hundred dollars to clear and grub eleven and eight tenths acres fixed the lump sum rate to be paid at forty-two dollars per acre for each acre cleared and grubbed in the road project. This is about as clear as we can present the contention of the appellee.

The county and the highway engineer claimed that the entire project of eleven and eight-tenths miles was to be cleared and grubbed for the lump sum of five hundred dollars, and they refused to pay the construction company any greater sum than five hundred dollars, which amount was received by the construction company under protest, and claimed the balance of two thousand twelve dollars and fifty-four cents, the amount sued for and recovered in the case.

It is our opinion that the item of clearing and grubbing the eleven and eight-tenths miles of road was let at the lump sum of five hundred dollars for the entire project; there being no "special clause to the contrary." This amount was bid, under the contract, for the clearing and grubbing of whatever acreage there might be in the project. The stipulation in the specifications, which are part of the contract, providing that "clearing and grubbing will, in the absence of a special clause to the contrary, be paid for at the lump sum (five hundred dollars) rate for the entire project mentioned in the proposal," simply means that the bid of five hundred dollars in this case was the lump sum to cover the entire work, and any part of the work done should be paid for in the proportion of five hundred dollars to the whole project. For instance, if the contractor had cleared and grubbed one-half of the eleven and eight-tenths miles project, then he would have been entitled to receive pay on the basis of one-half of five hundred dollars, the lump sum bid, which would be two hundred fifty dollars. We cannot see that the contract means anything else.

The bid of the construction company was to do the whole work of clearing and grubbing for the lump sum of five hundred dollars. It will be noticed the bid was not upon a unit basis, for the column in which the unit basis bid was required to be written is blank; therefore it is not a unit basis bid, but is a lump sum bid for the entire work.

We think this is the true construction of the contract, regardless of the fact that "eleven and eight-tenths acres" was placed in the column opposite the bid, because the construction company knew the clearing and grubbing was to be done for the entire project of eleven and eight-tenths miles, which manifestly consisted of more than eleven and eight-tenths acres, and the contractor undertook the work at the lump sum of five hundred dollars, regardless of what the proposal may have erroneously stated or estimated as to the acreage.

Now the specifications, proposal, and notice to bidders in this case plainly proclaimed that the road project was eleven and eight-tenths miles long and designated its width. All parties knew the road was eleven and eight-tenths miles in length and of a certain width, which was to constitute the amount of clearing and grubbing to be done to complete the project, and yet, notwithstanding this fact, the figures eleven and eight-tenths acres are placed in the "Approximate Quantities" column, and followed with a bid of five hundred dollars as the lump sum for the work.

It seems that the writing of the figures eleven and eight-tenths acres was an error, and that the intention of the parties was not expressed by these figures, because eleven and eight-tenths miles was the length of the road project which was in the minds of the parties.

However, if we be mistaken in this view, still it is our judgment that, where there is a conflict in two provisions of a contract, and one must yield, it is the duty of the court to ascertain, if possible, from the whole contract, and the circumstances and surroundings, which of the conflicting provisions was intended to prevail, and adopt that construction. So, if it be said that there is a conflict herein, then it is our opinion that the dominant idea in the minds of the parties was that the road project was eleven and eight-tenths miles in length, and the clearing and grubbing was to be of the entire project, for a lump sum, regardless of the amount of acreage therein.

And, following that interpretation, we think the construction company undertook by its contract to clear and grub the entire acreage in the eleven and eight-tenths miles project for the sum of five hundred dollars. And, since the five hundred dollars has been paid, the county is not liable for any further amount. In view of these conclusions, the judgment of the lower court will be reversed, and the judgment entered here for appellant.

Reversed, and judgment here for appellant.

Reversed.