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F. D. Rich Co. v. Wilmington Housing Authority

decided: April 10, 1968.

F. D. RICH CO., INCORPORATED, APPELLANT,
v.
WILMINGTON HOUSING AUTHORITY



Hastie, Chief Judge, and Freedman and Van Dusen, Circuit Judges.

Author: Freedman

Opinion OF THE COURT

FREEDMAN, Circuit Judge.

Plaintiff, F. D. Rich Co., Incorporated, as the successful bidder was awarded the contract by defendant, Wilmington Housing Authority, to construct a public housing project in Wilmington, Delaware. The present diversity action seeks recovery on two claims arising from the contract. One is for the additional cost of $33,677.75 which resulted from the Authority's requirement that plaintiff supply off-site or "borrow" fill material for areas in which plaintiff had contemplated using on-site fill material. The other claim is for additional expenses in heating the buildings and in storing electric refrigerators which resulted from the extension of the time for completion of the project, amounting to $12,567.10. The district court entered summary judgment for defendant on the claim for additional expenses and after a nonjury trial rejected the claim for the additional cost of fill.*fn1 From the final judgment for defendant, plaintiff has taken this appeal.

I.

Plaintiff's first claim depends upon an interpretation of the contract specifications. As originally drawn the specifications permitted the use of on-site material as backfill against the foundations, making no reference to other areas of the site. Subsequently, however, the Authority issued Addendum 1 which required the use of "Test Controlled Compacted Fill" in some areas of the project and defined this term so as to make it clear that the fill was to come from off-site locations, or "borrow pits". Addendum 4, which is the source of the dispute, provides:

" Excess Excavated Materials from other areas of the site if found to be suitable by the local Authority may be used for Test Controlled Compacted Fill in areas three feet outside of building lines. No such material may be used for Test Controlled Fill at depth below level of building footings." (Specifications, Part III, Division 2, para. 8h(2).)

Plaintiff contends that para. 8h(2) authorized it to use on-site fill below the level of the building footings so long as it was three feet outside the building lines. This conclusion can only be reached, however, by making the first sentence absolute and by reducing the second sentence to mere surplusage, since by virtue of the first sentence on-site fill cannot be used within three feet of the building line at any depth. But the meaning of the second sentence is not so limited. It does not prohibit the use of on-site fill directly below building footings. Instead it forbids the use of such material at a depth below the level of the building footings. This clearly means that on-site material may not be used at a depth which is below a line projected from the building footings. Thus, the manifest meaning of the provision coincides with a construction which would not do violence to either sentence. It authorizes the use of on-site fill in areas three feet outside the building lines but prohibits its use below the level of the building footings.

Since the language of the contract is clear and without ambiguity and leads to a meaning which is both reasonable and sensible, there is no need to look beyond it in search of some other intention.*fn2

II.

Plaintiff's second claim is based on the extension of the completion date of the contract granted by the Authority's Contracting Officer. As a result of this extension the Authority required plaintiff to assume the cost of providing heat for an additional heating season and to store electric refrigerators which were on hand but which could not be installed at the time.

Both of these items of expense would normally have been borne by the plaintiff under the contract.*fn3 The contract moreover contains a general "no damage" clause, common in public contracts:

"No payment or compensation of any kind shall be made to the Contractor for damages because of hindrance or delay from any cause in the progress of the work, whether such hindrances or delays be avoidable or unavoidable."*fn4

Such a clause is now universally accepted as valid,*fn5 although it is, of course, to be strictly construed against the owner.*fn6 Plaintiff does not question the validity of the provision but argues that the present case falls within what it ...


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