Summary
rejecting the circuit court's "conclusion of law" that the purpose of a contractual term has been substantially frustrated while deferring to the circuit court's findings of fact
Summary of this case from Convenience Store Leasing & Mgmt. v. Annapurna Mktg.Opinion
No. 265.
Argued April 2, 1974. —
Decided May 7, 1974.
APPEAL from a judgment of the circuit court for Milwaukee county: RONOLD A. DRESCHLER, Reserve Circuit Judge, Presiding. Affirmed.
For the appellant there was a brief by Tyson, Sawyer Murphy and John J. Tyson, all of Elm Grove, and oral argument by John J. Tyson.
For the respondent there was a brief by Robert P. Russell, corporation counsel, and James J. Bonifas, deputy corporation counsel, and oral argument by Mr. Bonifas.
This is an action on a written highway improvement contract to recover $7,000 alleged to be due under the terms of the contract.
Sometime prior to June, 1968, Milwaukee county undertook a highway-bridge improvement project on Hampton Avenue in or near Lincoln Park. A new, slightly relocated, bridge was to be built. This necessitated the building of a new bridge, new bridge approaches, sidewalks and like improvements. After the new bridge was built the old one was to be demolished and removed.
To complete the project, county of Milwaukee, the defendant-respondent in this action, advertised for bids and entered into two prime contracts. The first prime contract entered into was with Jos. D. Bonness, Inc. Bonness was to build the new bridge and demolish the old one. Bonness is not involved in this litigation.
In June of 1968, the county entered into the second prime contract with Wm. Beaudoin Sons, Inc., the plaintiff-appellant. Beaudoin was to install the new road and the approaches to the new bridge and remove and regrade the approaches to the old bridge.
Under terms of the Bonness contract, it was to remove the wings and abutments of the old bridge to a distance of one foot below the "then existing grade."
Prior to entering into the contract with Beaudoin, the county determined to change the grade from the river to the roadway or bank at the site of the old bridge.
The Beaudoin contract consisted of 27 distinct items dealing with different phases of the work. The entire contract price was stated to be $52,000. However, the bid and the contract, with the exception of Item 21, were on a unit basis dependent upon the amount of work actually necessary and done so that in the final analysis the county might owe Beaudoin more or less than the $52,000 stated.
Because of the change of grade to a distance several feet lower than the existing grade at the site of the old bridge, the wings and abutments would have to be removed to a depth lower than one foot below the then existing grade called for in the Bonness contract. Item 21 of the Beaudoin contract was entered into to remedy this problem. It is this "item" that gives rise to the dispute. Item 21 was not upon a unit basis but a lump sum amount of $7,000. It provides:
"Breaking down and removing the reinforced concrete abutments, sidewalks, or other sub-structures remaining from the demolition of the existing Hampton Avenue Bridge to a point two (2) feet below the proposed finished ground line, including all incidentals necessary to complete the work as shown on the drawings, specified and accepted."
It was not until December of 1968, that Bonness started to demolish the old bridge. Bonness had sublet all of the old bridge demolition work to Northwestern Lumber and Wrecking Company. When Northwestern started to demolish the old bridge and remove the debris it found that the work could be done much more expeditiously if it could cut the slope down from the street level to the river so as to be able to get its trucks and heavy equipment down to the river bed and up again.
Joseph DiFrances, an officer of Northwestern, knew Beaudoin had a grading contract with the county but knew none of its terms. He called Beaudoin to get permission to alter the grade and remove some of the concrete foundations of the wings and abutments and regrade the area after it finished. Howard Beaudoin told him he had no objection. Beaudoin did not pay Northwestern for any of this work and Northwestern claims none.
Northwestern had completed its work and left the site before Beaudoin attempted to do any work contemplated by Item 21.
All of the work called for in the Beaudoin contract was done satisfactorily and accepted by the county, including Item 21. The county paid Beaudoin all items without dispute except Item 21. The county refused to pay any sum for Item 21 based upon its position that Beaudoin had not done any of the work and was not entitled to any compensation for it.
This litigation followed and was heard and determined by the trial court without a jury.
The trial court found none of the work required by Item 21 was done by Beaudoin, that it had no contract with Northwestern and had paid nothing to Northwestern. The court concluded that Item 21 had, in effect, dropped out of the Beaudoin contract and ordered the complaint dismissed. Beaudoin appeals.
Beaudoin argues here that the evidence does not sustain the trial court's findings of fact and that the court's conclusion of law that because Beaudoin performed no services under Item 21 the provision dropped out of the contract and the county has no liability thereunder is erroneous.
A countless number of cases, both old and new, state the rule that findings of fact of a trial court sitting without a jury will not be upset upon appellate review unless those findings are against the great weight and clear preponderance of the evidence; and that credibility of the witnesses and weight of the testimony are within the province of the trier of fact, not to be interfered with unless clearly or manifestly wrong.
There is a dispute in the evidence as to whether Beaudoin did any of the work called for in Item 21. Howard Beaudoin and his brother, James, both testified that there were some concrete abutments they had to remove, together with other rubble.
The county engineer and the county project supervisor testified that after Northwestern left there were no abutments to remove and that all there was to be done was a slight amount of grading and cleaning up of debris or rubble. This testimony was corroborated by the subcontractor of Beaudoin who did the cleanup work. Upon this testimony alone we would sustain the finding of the trial court.
More importantly, in making the finding the trial court relied heavily upon photographs of the site taken before Beaudoin started its work. The appellant did not see fit to include these photographs (slides) in the appeal record as exhibits. Clearly under these circumstances we will presume the trial court was correct and will not interfere.
Admittedly Beaudoin did some cleanup work at the site. The trial court found that the cleanup work was encompassed in another item of the contract and Beaudoin was compensated for it. Again, nowhere in the record here do we find even a copy of the contract — three isolated provisions, but not the contract. We cannot review evidence that is not before us; this finding of fact made by the trial court is sustained.
Beaudoin also claims there was, in fact, a contract between it and Northwestern. The trial court found there was none. We agree with the trial court that the evidence offered by Beaudoin was not sufficient to establish a contract between Beaudoin and Northwestern to perform the work required by Item 21. Northwestern did not see the contract, did not know the nature or extent of the work required and only asked permission to change the grade and remove some of the concrete remnants of the old bridge. Beaudoin's only response was it had no objection and in no way directed what was to be done or about how it was to be done. These "arrangements" (so designated by the trial court) do not reach the dignity or requirements of a contract.
There being no contract between Beaudoin and Northwestern to do any of the work required by Item 21, the arguments as to the listing and notice requirements for subcontractors become immaterial and will not be discussed.
Beaudoin argues, as a matter of general contract law, that when it contracted to and was obligated to perform the work pursuant to the contract, and the work was satisfactorily completed, it is entitled to be compensated under the terms of the contract. We do not agree under the facts of this case.
Item 21 was inserted as a special item called for because of a change of plans not contemplated when the county entered into its contract with Bonness. Beaudoin did not notify or advise the county in any manner that Northwestern, on its behalf, was doing the work called for in Item 21. Prior to the time that Beaudoin moved any equipment to the site or performed any work, the condition that necessitated Item 21 no longer existed. There was nothing that Beaudoin had to do or perhaps even could do to perform any obligations it might have had under Item 21.
The Restatement of Contracts and others recognize the doctrine of Discharge by Supervening Frustration. The tentative draft cited in the footnote provides:
Restatement, Contracts, p. 427, sec. 288 and Restatement 2d, Contracts, Tentative Draft No. 9 (April 8, 1974), p. 77, sec. 285.
"Where after a contract is made a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary."
We believe this to be a sound statement of the law and adopt it.
Under this rule the principal purpose of Item 21 was frustrated by the intervening act of Northwestern and Beaudoin's duty of performance was discharged. Beaudoin had no duty to perform and is not entitled to the compensation provided in the contract.
The trial court's conclusion of law that Item 21 dropped out of the contract as far as Beaudoin was concerned and that the county is not liable to Beaudoin for payment is not error.
By the Court. — Judgment affirmed.