Wood-Hopkins Con. Co. v. North Carolina St. Ports Au.

202 S.E.2d 473 (1974)

284 N.C. 732

WOOD-HOPKINS CONTRACTING COMPANY, a corporation v. NORTH CAROLINA STATE PORTS AUTHORITY.

No. 45.

Supreme Court of North Carolina.

February 25, 1974.

*475 Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Joseph W. Grier, Jr., and William L. Rikard, Jr., Charlotte, for plaintiff appellee.

Robert Morgan, Atty. Gen. by Edwin M. Speas, Jr., Asst. Atty. Gen., Raleigh, for defendant appellant.

HIGGINS, Justice.

The defendant first challenged the plaintiff's right to recover in this action on the ground the contract required the plaintiff to perform labor, furnish materials, and complete its obligation under the contract for the fixed lump sum stated in the contract.

The parties stipulated that the plaintiff filed a base bid of $2,947,417.00 and $350,330.00 and $94,402.00 for certain alternative proposals. The contract specifically *476 provided for a unit price for certain items of construction. These items included a provision of $2.00 per cubic yard for underwater fill compressed in place as base support for pilings designed to support the above-water unloading facilities. The plaintiff claimed pay at the rate of $2.00 per cubic yard for 54,440 cubic yards of fill. The defendant denied the claim on the ground that the entire work was covered by the amount bid which was a lump sum contract provision.

It is admitted that the defendant's engineers, chief of whom was Mr. Joseph R. Gordon, prepared the plans and specifications and, after the plaintiff's bid was accepted, drew the contract which specifically stated that fill should be paid for at the rate of $2.00 per cubic yard. The engineer first testified that the purpose of inserting the price per unit was, "To be fair to the contractor we wanted to give him an adjustment for the work he actually performed. So, if the river bottom changed from the time of the survey until the time he began work, that would be one reason the unit prices were included. That actually happened. That was the primary reason. . . . The second reason was that there was some money held back at the time of the letting of the contract that the Ports Authority intended to spend along the end and the unit price would be used to negotiate additional changes for which a change order would have been written. These unit prices are also included to cover extra work that might need to be done. They form the basis of negotiating the change order for the extra work." But in the pinch Mr. Gordon testified:

"Q The fact is, Mr. Gordon, that these figures were put in simply for the contractor's guidance with the expectation that when the material was in place there would be an adjustment? "A This was the best figure we had, yes, sir, and we did expect to adjust them on the basis of what was actually done."

The foregoing does not support a lump sum claim for all work. The very fact that a specific price was inserted for fill negates a lump sum claim.

The specifications were drawn by Mr. Gordon, the defendant's engineer. It is a rule of contracts that in case of disputed items, the interpretation of the contract will be inclined against the person who drafted it. Yates v. Brown, 275 N.C. 634, 170 S.E.2d 477; Root v. Insurance Co., 272 N.C. 580, 158 S.E.2d 829; Lester Bros., Inc. v. Thompson Co., 261 N.C. 210, 134 S.E.2d 372; Trust Co. v. Medford, 258 N.C. 146, 128 S.E.2d 141.

Another rule of law which supports the plaintiff's claim is that when general terms and specific statements are included in the same contract and there is a conflict, the general terms should give way to the specifics. Authorities are listed in Am.Jur.2d, Vol. 17, Contracts, Section 270.

The court was correct in holding the unit per cubic yard price of fill rather than the lump sum contention prevails. The above question was argued in the defendant's brief, but the defendant's position is shaded and weakened, if not eliminated, by a stipulation entered at the final hearing.

"(9) The soundings taken after completion of the dredging showed a void beyond the plan line, and there is no dispute as to the amount of additional fill required to fill this area and to complete the contract."

The dispute is reduced to the question whether the plaintiff is entitled to receive payment for the fill placed behind the plan line.

In addition to the general denial and the lump sum claim, the defendant has set up these further defenses: The extra fill was caused by plaintiff's negligence in dredging plan line or, in the alternative, "[P]laintiff's failure to meet the contract lines resulted from sloughing of the riverbank." *477 The defendant attempted to support the contention by Paragraph 5, Section 2A of the contract. "The contractor shall be responsible for slides, washouts, settlement, subsidence, or any mishap to the work while under construction. He shall be responsible for the stability of all embankments constructed under this specification and shall replace any portion which may become displaced from any cause before completion and acceptance . . . ."

According to the testimony, the void behind the plan line was caused by the action of the river in carrying the riverbed material into the deep channel which had been dredged up to the plan lines. Of course when the material was washed into the dredged channel, it was the obligation of the plaintiff to remove that material. This it did without charge. The material which had washed into the channel left the void beyond the channel line which required the fill. Nothing in Paragraph 5, Section 2A, required the plaintiff to do anything except remove obstructions. Nothing required it to compress fill in place except for the unit price provided in the contract.

The court found from the evidence, "The void area behind the plan line was not caused by over-dredging." The unstable condition of the riverbed is shown by this stipulation of the parties: "[T]he area in which the work was performed had in past time been rice fields."

The plaintiff, recognizing its responsibility for slides, etc., redredged the channel and inserted 54,440 cubic yards of fill which was required "to complete the work."

The evidence disclosed that all dredging was done and all fill compressed in place under the watchful eye of the defendant's engineer. During the progress of the work, the plaintiff, as provided in the contract, filed claims for partial advances which were approved by the engineer and paid by the defendant without objection. Never at any time prior to the acceptance of the finished job, did the defendant make any objection or raise any question with respect to that part of the fill which is the subject of the present dispute.

The trial court's findings of fact are supported by the evidence. In a case of this character, the judge's findings have the same force as a jury verdict. G.S. § 143-135.3 provides that a suit against a State agency for a breach of contract shall be tried in the Superior Court of Wake County or in the jurisdiction of the court in which the work was done, without a jury. Harrison Associates v. State Ports Authority, 280 N.C. 251, 185 S.E.2d 793. In a trial before a judge, technical objections to the admissibility of evidence will not be observed. Prejudicial results must be shown or it may be deemed the court in its findings considered only competent evidence. General Metals v. Manufacturing Co., 259 N.C. 709, 131 S.E.2d 360; Harris & Harris Construction Co. v. Crain and Denbo, Inc., 256 N.C. 110, 123 S.E.2d 590; Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668.

The court's findings of fact are amply supported by evidence and the findings support the judgment.

Affirmed.