Inland Bridge Co. v. NC STATE HIGHWAY COM'N

227 S.E.2d 648 (1976)

30 N.C. App. 535

INLAND BRIDGE COMPANY, INC. and Roadbuilders, Inc. (a joint venture) v. NORTH CAROLINA STATE HIGHWAY COMMISSION (now Board of Transportation).

No. 7610SC262.

Court of Appeals of North Carolina.

September 1, 1976.

*653 Eugene L. Brantley, Columbia, S. C., and Jordan, Morris & Hoke by Joseph E. Wall, Raleigh, for plaintiffs-appellants.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Eugene A. Smith and Associate Atty. Robert W. Kaylor, Raleigh, for the State.

HEDRICK, Judge.

Plaintiffs assign as error the granting of defendant's motion for dismissal. Under Rule 41(b) in a trial without a jury, the trial judge does not consider the evidence in the light most favorable to the plaintiff. Instead, he must consider and weigh all the competent evidence before him, passing upon the credibility of the witnesses, the weight to be given their testimony, *654 and the reasonable inferences to be drawn therefrom. The trial court must make findings and conclusions in support of his order; and where the findings are clearly supported by the evidence, they are binding on appeal. Helms v. Rea, 282 N.C. 610, 194 S.E.2d 1 (1973); G.S. 1A-1, Rules 41(b) and 52(a).

In the present case, plaintiffs have excepted to numerous findings and to every conclusion made by the trial court. We have examined the exceptions to the findings of fact and find them to be without merit. In particular, the court found the following:

"(19) The plaintiffs, prior to bidding on the project, requested from and received subsurface information made available by the defendant. (20) The subsurface information furnished plaintiffs, Exhibit D-8(2), contained information relative to the composition and moisture of the soil to be encountered in the construction of the project. Defendant's Exhibit D-8(2), shows the results of ten moisture tests taken by defendant's personnel in December, 1966. The natural moisture content as indicated in each of the samples was as follows: 29.4%, 31.6%, 33.5%, 34%, 35.3%, 36.8%, 39.1%, 39.2%, 40.5%, and 43.3%. (21) Section 2.5 of the Standard Specifications, entitled EXAMINATION OF PLANS, SPECIFICATIONS, AND SITE WORK provides as follows: `The bidder is required to examine carefully the site of the proposed work, proposal, plans, specifications, and contract forms before submitting a proposal. It is mutually agreed that submission of bids shall be considered prima facie evidence that the bidder has made such examinations and is satisfied as to the conditions to be encountered in performing the work, and as to the requirements of the plans, specifications, supplemental specifications, special provisions, and contract.' (22) The plaintiffs made a visual inspection of the site prior to submitting a bid; however, the plaintiffs made no borings, tests, or other examinations of the material in the cut sections of the project to determine the composition of the soil or the existing moisture content. * * * * * * (26) The project began at Survey Station 396 ± and terminated at Station 515 ±. The material between Station 396 and 425 had a high moisture content which was difficult to reduce to optimum moisture. The composition of some of the material shown in the subsurface information indicated the material was marginal for use in the construction of roadway embankments. Project plans provided for the excavation material to be used in embankment sections on this project 3 feet below the subgrade of the finished roadway. (27) The defendant warned prospective bidders that the material to be taken from the cut section between Stations 396 and 415 contained a high percentage of moisture, which placed the bidders on notice of difficulty in excavating and placing the material in embankments. The information made available to plaintiffs prior to bidding concerning the soil composition was such that based solely upon that information the plaintiffs' expert witness, Professor Kenneth Humphries, was of the opinion that it was unstable, difficult to dry and compact, and its use in the embankment was an `engineering impracticability'. (28) Plaintiffs presented no credible evidence that the composition of the soil was misrepresented by the contract documents. * * * * * * (51) Plaintiffs produced no credible evidence that the `unclassified excavation' taken from the cut section on the project was in fact unsuitable for embankment construction of the project as called for in this contract. All material classified and paid for as `unclassified excavation' was classified and paid for in accordance with contract provisions. * * * * * * *655 (53) The material to be taken from the cut section on the project, and classified as unclassified excavation, was acceptable for embankment construction. * * * * * * (56) The Court finds that the conditions at the site encountered by the contractor were substantially the same as represented by defendant in the contract documents and that the defendant did not mislead or deceive the contractor into submitting a low bid by reason of any difference between the conditions represented by defendant and those actually encountered by the plaintiffs on the project."

Each of these findings is clearly supported by the evidence. Together they support the conclusion that defendant did not misrepresent the condition of the unclassified material which was used at the project site.

Plaintiffs have excepted to the following conclusions made by Judge Bailey:

"(1) The plaintiff is not entitled to any additional compensation by reason of the reclassification of the soil due to the failure of the plaintiff to file a claim with the State Highway Administrator before filing suit in the Superior Court as required by G.S. 136-29. (2) The contractor, having filed a claim with the State Highway Administrator alleging `misrepresentation of the moisture content of the soil', and the court having found as a fact that there was no material misrepresentation and that as the terms and provisions of the contract do not provide additional compensation to the contractor for increased cost by reason of misrepresentation, the plaintiffs' claim based on `misrepresentation of the moisture content of the soil', is hereby dismissed."

Plaintiffs contend strenuously that they were not bound by the claim filed with the State Highway Administrator since G.S. 136-29 clearly provides for a de novo trial in the superior court. They argue that they are not estopped from developing additional theories of recovery in the superior court. This contention is without merit. In Teer Co. v. Highway Commission, 265 N.C. 1, 143 S.E.2d 247 (1965), the Supreme Court made it clear that the Commission is not subject to suit except in the manner provided by statute. Plaintiffs' whole claim before the Commission was for misrepresentation. Had they desired to sue under the provisions in the SSRS incorporated into the contract, which provides for claims based on changed conditions, extra work, or reclassification of materials, it was necessary for them to elect to do so prior to the trial in the Superior Court. Construction Co. v. Highway Comm., 28 N.C.App. 593, 222 S.E.2d 452 (1976).

Moreover, G.S. 136-29 has been interpreted to provide for recovery only within the terms and framework of the contract. Teer Co. v. Highway Commission, 4 N.C.App. 126, 166 S.E.2d 705 (1969). The evidence introduced at trial shows clearly that plaintiffs did not make any formal protest to defendant until they wrote defendant on 6 May 1968. Subsequent to the mailing of that letter, plaintiffs and defendant entered into negotiations and executed an extra work order which was agreeable to both sides. Prior to 6 May 1968, plaintiffs did not formally protest in the manner provided for in the contract provisions. SSRS § 4.3A requires notice in writing to the Engineer where the contractor believes he has encountered changed conditions. SSRS 4.4(B) requires a written request for a modification in the contract and the issuance of an extra work order. SSRS § 22-3.8 provides that a protest of the classification made by the engineer must be made in writing.

Even assuming that plaintiffs could develop alternative theories of recovery at the trial level, the evidence shows clearly that they failed to proceed in the manner provided by the contract.

Judge Bailey made detailed findings with respect to the failure of the plaintiffs to notify defendant in accordance with the contract and to the failure of plaintiffs to keep force account records as required by the contract. These findings are amply *656 supported by plaintiffs' own evidence. Indeed there is no exception to the court's finding "that the contractor did not keep cost records as required by Section 4.3A of the Standard Specifications and 9.4 of the Standard Specifications on force account work".

"Strict compliance with the contract provisions. . . is a vital prerequisite for the recovery of additional compensation based on altered work, changed conditions, or extra work." Construction Co. v. Highway Comm., 28 N.C.App. at 606-607, 222 S.E.2d at 461. The findings support the conclusion that:

"[T]he plaintiffs are not entitled to recover any additional compensation for extra work by reason of the failure of plaintiffs to comply with the terms and provisions of the contract for obtaining additional compensation as a result of any alleged extra work."

The order appealed from is

Affirmed.

BRITT and MARTIN, JJ., concur.