Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FORSGREN v. GILLIOZ

July 21, 1954

FORSGREN ET AL.
v.
GILLIOZ.



The opinion of the court was delivered by: John E. Miller, District Judge.

Statement

Plaintiffs filed their complaint against defendant in the Circuit Court of Miller County, Arkansas, seeking to recover damages resulting from an alleged breach of contract on the part of the defendant.

Briefly stated, plaintiffs allege that the defendant had a contract with the Arkansas State Highway Department covering certain highway construction between Van Buren, Arkansas, and Alma, Arkansas, in Crawford County; that they subcontracted to do in its entirety part of the work included in the general contract between defendant and the State; that one of the items of work to be performed was the removing and resetting of shrubs in the approximate quantity of 40; that under the prime contract defendant was to be paid $1 each for removing and resetting said shrubs, while under the subcontract plaintiffs were to be paid $5 per shrub by defendant.

That it developed that it was necessary to remove and reset 5,391 shrubs; that defendant under his prime contract and plaintiffs under their subcontract were both entitled and required to remove and reset said shrubs, regardless of any overrun; that the Arkansas State Highway Department so construed the prime contract and that defendant accepted said construction; that plaintiffs proceeded to commence the removal and resetting of said shrubs but that defendant refused to permit plaintiffs to proceed with the work, and instead proceeded to do the work on his own account, receiving therefor $5,391 under the prime contract.

Plaintiffs allege that defendant's actions constituted a breach of the subcontract, and that they are entitled to recover from defendant the sum of $26,450, less the reasonable cost of removing and resetting 5,290 shrubs. (101 of the 5,391 shrubs were paid for by defendant at the rate of $5 each.) Plaintiffs also allege that defendant is indebted to them in the sum of $1,693.51 for other work done under the subcontract.

On January 18, 1954, the case was removed to the United States District Court, Western District of Arkansas, Texarkana Division.

The defendant on January 27, 1954, filed an answer containing a general denial of the allegations of plaintiffs' complaint. On February 11, 1954, defendant filed an amended answer alleging that both the prime contract and the subcontract provided for the removal and resetting of ornamental shrubs in yards along the right of way; that the 5,290 "shrubs" for which plaintiffs seek damages were not in fact shrubs, but were potted plants and other plants located in and near a greenhouse encroaching upon the right of way; that said plants were not removed and reset within the purview of the prime contract or the subcontract.

Defendant further alleges that plaintiffs refused to move said plants and that defendants arranged for and accomplished the moving of the same; that defendant in fact moved 4,818 potted plants and 3,586 other small plants in and around the greenhouse, and was allowed $5,290 as an estimated reasonable allowance for moving said plants, which were not covered by the prime contract or the subcontract.

On April 2, 1954, a pre-trial conference was had, and upon motion of plaintiffs the case was transferred from the Texarkana Division of the Western District of Arkansas to the Fort Smith Division of said District.

After the case was transferred, another pre-trial conference was had on May 5, 1954, and it was stipulated that defendant is indebted to plaintiffs in the sum of $1,693.51 for work not connected with the shrubs; that plaintiffs are in possession of a check in said amount issued by defendant, but that plaintiffs have not cashed said check because there appears thereon a statement that it is a settlement in full.

On June 8, 1954, defendant filed a second amended answer, repeating the allegations of his first amended answer, and further alleging that plaintiffs are not entitled to recover damages from him since they first breached the subcontract by failing to provide labor and materials during the course of the work, as required by said subcontract, and therefore cannot urge a breach of contract on his part.

Upon the issues as made by the pleadings, the case was tried to the Court, without a jury, on June 14 and 15, 1954, and at the conclusion of the trial the parties were directed to file briefs in support of their respective contentions.

The briefs have been received, and now the Court, having considered the pleadings, ore tenus testimony of the witnesses, depositions, stipulations, exhibits and briefs of the parties, makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact

1.

The plaintiffs are each citizens and residents of the State of Arkansas.

The defendant is a citizen and resident of the State of Missouri.

The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

2.

Sometime prior to September 16, 1950, the State of Arkansas entertained bids for certain highway construction work between Van Buren and Alma, Arkansas, said job being designated as Arkansas State Highway Department Job No. 4333, Crawford County, Arkansas. The defendant and plaintiffs were bidders on the job, and had inspected the job site and the plans and profiles prior to making their bids. Defendant was the successful bidder, while plaintiffs were second low bidders.

The contract entered into between defendant and the State contained the following relevant provisions:

"Proposal Schedule (Sheet 6)

    "Item No. SP-1064-1, Approximate Quantity 40, Each
  Removing and Resetting Shrubs at One Dollar and No
  Cents per Each. Unit Price Bid 1.00. Amount Bid
  40.00."

"Special Provision "

"— Removing and Resetting Shrubs —

"Description:

    "This item shall consist of the removing and
  resetting of shrubs, including rose bushes, in
  accordance with these specifications and at locations
  shown on the plans or as designated by the Engineer.

"Construction Methods:

    "A section of earth of sufficient area and depth to
  assure the shrub living after it has been reset,
  shall be removed intact with the roots and body of
  the shrub. Each shrub shall be reset at a location
  designated by the Engineer after the location has
  been properly prepared by grading, loosening of
  earth, excavating pit, removal of stone or any other
  unsatisfactory materials, or by any other means
  necessary to obtain a satisfactory root bed. The
  shrub shall be carefully set in the new pit and
  backfill made with suitable material, well tamped and
  watered, and such other means shall be used in
  transplanting as are necessary for the continued life
  and growth of the shrub.
    "In removing and resetting, care shall be taken to
  prevent damage to the shrub and in case any shrub is
  damaged through carelessness on the part of the
  Contractor, it shall be replaced by him at his own
  expense with a shrub equivalent to the one damaged.

"Basis of Payment:

    "Work performed and accepted under this item will
  be paid for at the contract unit price each bid for
  `Removing and Resetting Shrubs', which price shall be
  full compensation for removing and resetting shrubs,
  excavating and backfilling pits, pruning, for
  furnishing all necessary material, and for all
  equipment, tools, labor and incidentals necessary to
  complete the work."

"Section 2 — Proposal Requirements and Conditions

    "2.2. Interpretation of Approximate Estimate. The
  Bidder's attention is called to the fact that the
  estimate of quantities of all work to be done and
  materials to be furnished under these specifications,
  as shown on the proposal form, is approximate and is
  given only as a basis of calculation upon which the
  award of the contract is to be made. The Commission
  does not assume any responsibility that the final
  quantities shall remain in strict accordance with
  estimated quantities, nor shall the Contractor plead
  misunderstanding or deception because of such
  estimate of quantities, or of the character, location
  or other conditions pertaining thereto.
    "2.3. Familiarity with Proposed Work. The Bidder
  must examine carefully the site of the work
  contemplated, the proposal, plans, specifications,
  instructions to bidders, special provisions, and
  contract form before submitting his proposal, and
  otherwise familiarize himself with the character and
  extent of the proposed construction. Submission of a
  proposal shall be considered prima facie evidence
  that the Bidder has made such examination."

"Section 4 — Scope of the Work

    "4.3. Alterations of Plans or Character of Work.
  The Commission shall have the right to increase or
  decrease the extent of the work, to change the
  location or gradient or the dimensions of any part of
  the work, provided that the length of the improvement
  is not increased or decreased in excess of 25 per
  cent of the length as determined by the Contract
  award, or that the quantities of work to be done or
  the materials to be furnished are not increased or
  decreased in money value in excess of 25 per cent of
  the total as determined by the Contract award. Such
  changes shall not be considered as a waiver of any
  conditions of the Contract nor invalidate any of the
  provisions thereof. The Contractor shall perform the
  work as increased or decreased within the qualifying
  limits named and no allowance will be made for
  anticipated profits on increases or decreases so
  incurred.
    "4.4. Extra Work. The Contractor, if required by
  the Engineer, shall perform unforeseen work, for
  which there is no quantity and price included in the
  Contract, or where increases or decreases in
  quantities are made in excess of the amounts set out
  in Paragraph 4.3, or whenever it is deemed necessary
  or desirable to further complete the work as
  contemplated. Such extra work shall be performed in
  accordance with the specifications and as directed;
  provided, however, that before any extra work is
  started a supplemental agreement shall be signed by
  both contracting parties, or a written order from the
  Engineer to do the work on a Force Account basis
  given the Contractor."

"Section 5 — Control of the Work

    "5.2. Chief Engineer to be Referee. In order to
  prevent misunderstanding and litigation, it is
  mutually agreed by both parties to this Contract that
  the Chief Engineer shall act as referee in all
  questions arising under the terms of the contract
  between the parties hereto, and that the decision of
  the Chief Engineer, in such cases, shall be final and
  binding upon both parties alike."

"VII. Subletting or Assigning the Contract

    "The contractor shall perform with his own
  organization work amounting to not less than 50
  percent of the remainder obtained by subtracting from
  the total original contract value the sum of any
  items designated in the contract as `Specialty
  Items.'
    "Any items that have been selected as `Specialty
  Items' for the contract are listed as such in the
  Special Provisions found elsewhere in the contract.
    "No portion of the contract shall be sublet,
  assigned or otherwise disposed of except with the
  written consent of the contracting officer or his
  authorized representative. Requests for permission to
  sublet, assign or otherwise dispose of any portion of
  the contract shall be in writing and accompanied by a
  showing that the organization which will perform the
  work is particularly experienced and equipped for
  such work. The contractor shall give assurance that
  the minimum wage for labor as stated in his proposal
  shall apply to labor performed on all work sublet,
  assigned or otherwise disposed of in any way. Consent
  to sublet, assign or otherwise dispose of any portion
  of the contract shall not be construed to relieve the
  contractor of any responsibility for the fulfillment
  of the contract."

Thereafter, on September 16, 1950, defendant entered into the following subcontract with plaintiffs:

"Contract Agreement

    "This contract agreement entered into on this the
  16th of Sept. 1950 by and between M.E. Gillioz an
  individual of Monett, Missouri, party of the first
  part, and Forsgren Brothers, a partnership of Ft.
  Smith, Arkansas, party of the second part.
    "Witnesseth, the parties above mentioned have on
  this date entered into an agreement whereby the party
  of the second part agrees to perform in their
  entireity (entirety) certain items of work covered by
  the party of the first part's general contract with
  the Arkansas State Highway Department, on Job No.
  4333, Crawford County, Arkansas.
    "The party of the second part agrees to do in their
  entireity (entirety) certain items of work, covered
  by the party of the first part's general contract
  with the Arkansas State Highway Department on Job No.
  4333, Crawford ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.