*1 CONTRACTORS, INC., COMMERCIAL
Plaintiff-Appellant,
v. FIDELITY GUAR- STATES
UNITED COMPANY, Defendant-Third- ANTY Plaintiff-Appellee, Party ASSOCIATES,
R. B. ETHRIDGE &
INC., al., Third-Party et
Defendants-Appellees. 74-2026.
No. of Appeals, Court
United States Fifth Circuit.
Sept.
As Modifiedon Denial Rehearing 21,1975.
Nov. *3 Ala., Clark, Birmingham, W. E. James Bessemer, Stone, Ala., Champ
Gerald Jr., Ala., Montgomery, for plain- Lyons, tiff-appellant. Hill, Birmingham, Ala.,
Tommy E. Associates, Ethridge & Inc. and B.R. others. Blan, Jr., Starnes, R. H. L. L. S. Ollie Ala., Jr., Birmingham, for U.
Ferguson, Fidelity Guaranty Co. S. BROWN, Judge, WIS- Chief Before COLEMAN, Judges. Circuit and DOM COLEMAN, Judge. Circuit Although building construction con- generally fall within the tracts more ele- law, mentary appeal, ambits of the from the results of a prolonged taken trial, presents us with a labyrinthi- of law facts. gener- an confusion A sued al contractor his subcontractor and surety on the performance bond for damages allegedly sustained nonper- masonry formance of a subcontract. in a judgment This terminated for against subcontractor and the general $185,000. contractor We reverse and remand for a new tri- al.
Perhaps the best toway accomplish a clarification maze would be first to recite the facts.
I
Facts In the summer of Contractors, contractor, general un- plans to build Urban Turn- dertook Housing, (Commercial’s wholly Inc. key subsidiary) a 200 unit low cost owned Bessemer, project housing Alabama. The cover Turnkey Urban letter completion, Upon attachments Ethridge’s convey facility to the reached office September planned Housing Authority. engineers 28. One firm’s placed Bessemer the name of firm and his initials on agree- 1970 sales September letter only the cover and returned it to Turnkey and the Urban ment between Commercial, received there on Septem- Housing Authority called for Bessemer 30. ber facility July no later than delivery September 1970 con- It was until November between Commer- executed agreement masonry struction con- Turnkey stipulated tract reached Commercial. Urban This was cial 1, 1971. moment because July no the strike was project still and no progress work could have be- events, anticipation coming Com- In any event. gun in already put the had Contractors mercial *4 the cover from interested subcon- When letter of September for bids job out 25 received, R. Ethridge was B. was out tractors. of and testified town that he never saw the 1970, 17, R. B. August On accompanying construction (Ethridge) submitted bids on Associates engineer initialing The testified that he masonry portions of the the concrete packet opened the never which accompa- eventually was project. digress the letter. nied We here long these subcontracts. awarded enough say to that assuming this testi- the concrete work and was completed true, mony to be we attribute no legal accordingly. We are now concerned paid to it. significance masonry only subcontract. 21, 1970, September Commercial On Ethridge the written contract for
mailed In the place, first the letter re subcontract, $700,- at masonry priced Ethridge’s ceived at office was notice of completion date, regardless 000. of whether 25, officer or responsible Commercial mailed September On em ployee chose to read it. In the construction schedule to all Bessemer second place, even if a jury should accompanying The let- believe subcontractors. that a contractor sign $700,000 would a that was explained ter schedule con tract without bothering agree- in the to to subcontract learn one referred completion specified date, it prepared schedule was in the ment. nevertheless law, remains the chart”, at least graphic “bar which is a a Alabama, form of in the that absence of indicating the fraud or sequence misrepre and allot- display sentation, one who executes each item of work on the a ted time written ignorance contract in a tells contractor when he This contents project. can plead ignorance not begin each to to and finish task avoid expected obligation, Colburn v. The critical item of the Mid job. State Homes, on the Inc., 1972, 289 255, Ala. that it twenty allotted two 266 865; schedule So.2d Eley v. Brunner-Lay masonry Southern Corpora weeks for tion, Inc., 1972, 289 120, Ala. 266 work. So.2d 276; Grady v. Williams, 1954, 260 Ala. explained specific letter cover 267; 70 So.2d Ben Cheeseman Real were included in the dates calendar ty Company v. Thompson, 1927, 216 Ala. A worker’s strike made bar chart. 151. 112 So. specify impossible date for the work dates would be inserted About begin December 29 the worker’s —the strike ended. strike was near when settlement and Ethridge received a requested acknowledge receipt construction schedule from initialing the cover letter which by had specific schedule dates returning it with the exe- filled in on the along axis, time showing the sequence for same subcontract. masonry cuted work as 25, 1971, weather. On March September 25 specifying on specified Commer- cial sent out a revised twenty-two weeks for the schedule per- the same adjustments indicated the work. bad formance weather through conditions March 1971. The he saw schedule R. B. Eth- When cover letter enclosed with the new sched- concerned about the man- ridge became ule stated that the dates reflected on requirements of the power subcontract. were the this schedule maximum dates immediately project asked his mana- He performance. allowable for According job the Bessemer to calculate the ger for schedule, to this Ethridge was to com- required masons number of maintain plete masonry all work July 16, 1971. Lipscomb calculated that the schedule. This allowed five weeks of additional work, as stated in the sequence time over that set forth in the revised schedule, place December January schedule stringent Ethridge’s burden manpow- Under change subcontract capabilities. order er num- 6, 1971, May ber dated Ethridge, by 4, 1971, January On R. B. Ethridge agreement, mutual had been relieved of Lipscomb and Fred precon- attended a responsibility work on ten of the for- conference struction called Commer- ty buildings project, on the which re- cial, attending representatives whose duced total of original Williams, Cecil were senior vice presi- $142,000. charge dent construction and de- *5 June, About the middle of an out-of- Saxon, project Mac sign; manager masonry town subcontractor was em- job; the Bessemer and McDuff, C. C. ployed plus on a cost basis to do the supervisor for on-site job. Bessemer masonry on the ten buildings which Eth- January 4 meeting At this R. B. Eth- ridge dropped. had This subcontractor objections ridge raised to the sequence of began paying his brick masons twenty work set forth in the December 28 con- five cents an hour above the scale, union schedule. struction He felt that the se- plus seven dollars a day traveling ex- quence should be altered so that there penses. Ethridge’s When masons a more would be even distribution of learned of this some of them defected to throughout manpower job. entire higher paying employer. By about significant point The is that Mr. Eth- July discernibly this slowed Ethridge’s ridge expressed no objection to the operations. When this was called to twenty two weeks allotted for comple- attention, Commercial’s it arranged with masonry tion of the work. plus the cost contractor not to hire Commercial allowed Ethridge to sub- more of masons. mit revised schedule so as to level the In mid-July the carpenter subcontrac- manpower job. curve on the This was tor was terminated and there was a in mid-January done and it incorpo- shortage carpenters until another car- rated in Commercial’s revised schedule penter subcontractor could be found. January dated 1971. The revised This, extent, to some slowed Ethridge’s schedule continued to show the total progress. performance time for twenty as two evidence, however, clearly indi- weeks, Ethridge so was due complete to prime cates that cause of Ethridge’s masonry subcontract on June difficulties was its inability to hire a suf- the same date required ficient number of masons, brick and by the December 1970 factor existed from the very outset of project. Moreover, appears that in Ethridge also talked to Cecil Williams early stages project Ethridge alterations in the about schedule due to did not order the required materials bad weather conditions. Ethridge testi- allow the work proceed on schedule. that fied Williams told him the schedule updated would be every couple 2, 1971, of weeks August As of Ethridge had so as to adjustments reflect completed bad no more than 65% of the ma- (1) Was the Commercial-Eth- late issues: buildings re- thirty on the work sonry ambiguous?; (2) Was ridge day On that its subcontract. maining in or modification any waiver there contract?; Ethridge that notified Commercial (3) Was entitled to of 5 p. terminated as te contract m., weather, delays credit August Commercial, or other subcon- or tractors?; (4) Did Commercial waive the II allowing Ethridge to work be- breach Litigation date?; (5) per- the cut-off and Was yond litigation impossible? in mo- set the formance 27, 1971, by a com- September on tion ambiguity view that there was no Our Fideli- against United States filed plaint reversal for a new trial and necessitates Eth- Guaranty Company on its ty will be points other discussed in the Septem- bond dated ridge performance above order. charged that 21, 1970. Commercial ber by (1) its subcontract Ethridge breached IV the work refusing pursue failing and Ambiguous? Was the Contract sched- with Commercial’s accordance refusing failing and to correct ule, (2) by masonry Whether contract be- contract, and required by its deficiences Commercial and re- tween reports furnish test failing to (3) by quired specifically within a required by as con- mortar masonry and time, period of or was ambigu- definite damages demanded tract. Commercial respect, point ous in the focal $600,000. the sum the District of the trial in Court. There orders, pretrial two had been neither of Fidelity Guaranty States United point. which addressed When the and filed a answered, liability, denied commenced, however, the trial District R. B. Eth- complaint against party third parties informed the Judge his view Associates, Inc. as well as Rob- ridge ambiguous contract was as B. Myrtle ert B. *6 performance, parol time of and that asserting exoneration and personally, be concerning admitted evidence indemnity. party third parties of the regard. the intent in that responded party defendants The third jury was instructed to The decide wheth- against Commercial cross claim with a masonry er the work was to have been $287,130.54,alleging that for Contractors according to a strict performed time breached its contract had Ethridge. with point, opinion, in our On this the trial jury verdict was for United States The legally astray at the outset. went Guaranty and for Fidelity and Damages in favor the counterclaim. contract between Commercial The against assessed Com- Ethridge were of Ethridge, language couched in generally Contractors, Inc. in the sum of instruments, is, course, mercial $184,940.25. in such of utilized shall not record. We burden this in the lengthy verbatim opinion by excerpts. and, new trial in the for a A motion however, way summary, the first By alternative, judgment for a notwith- Article I stated that time was section of verdict, asserted 205 standing of the contract essence and that of the The motion was de- for relief. grounds “agrees pursue the Subcontractor nied. in accordance with Contrac- above work Thereafter, pro- schedule”. it was III tor’s that the Subcontractor would be- vided Issues Appellate instructed gin work when Con- carry it on may promptly, asserted below and would grounds The 205 tractor speed at a following appel- efficiently to the will not now be reduced 950 constituting a link in the chain of delay progress in each
cause of the work. comprise the entire con- given promises the option The Contractor Conditioning v. tract, Engineers Air terminating the contract for default. 1953, 171, 65 Small, 259 Ala. So.2d 698. Contractor was to be liable to writings are two connected in- any Where delay the Subcontractor affect- references to each other or exe- ing the work ternal regardless Subcontractor’s simultaneously respect added). (emphasis the cause If the cuted subject proved matter and work, to be delayed same Contractor Sub- transaction, the entire will required parts they make claim contractor contract, single to constitute delay writing be found forty- in within & v. Tensaw Land Lumber eight Com- beginning hours of the of the de- Moorer 105; 1945, 223, 246 Ala. 20 lay. XII(g), pany, So.2d Under Article if the Sub- Life & Accident Insurance agreement his Provident contractor breached 1953, Pressley, Ala.App. v. 37 Company terminate might employ- Contractor 153, 618. So.2d ment Subcontractor. As such customary matters, the con- Where contract terms are free provided tract further that it contained subsequent conduct ambiguity, by the agreement “the entire par- between the will not be parties admitted to show ties, and all changes additions thereto or legal effect be what should ascribed writing
therein shall be in and shall not Smith, language, Babcock v. the contract binding same writing”. be unless are in 573; 557, 1970,285 Ala. 234 So.2d South We are convinced that only Railway v. Company basis ern Louisville ambiguity asserted ques- Company, on the R. 241 Ala. Nashville 691, 400; tion of date upon founded 4 So.2d Twin Tree Lumber the fact that once the Ensign, Company contract was ter- 193 Ala. dispute minated arose as to what the 69 So. meant this regard.
contract tember, 1970, The Sep- Ethridge seeks to avoid the 22 schedule, work ratified and requirement by week reference to a adopted by Ethridge when it delivered mentioned in Article schedule 4.11.1 of executed November, contract in plans general specifications. twenty called for two weeks for the specifications part provides: That completion of the work. This schedule was not altered either the December Contractor, immediately “The after 28, 1970 or January 29, updates, Contract, awarded the being shall pre- about which registered no com- and submit pare for the ap- Architect’s plaint. The March 1971 extension of an proval progress estimated schedule *7 completion time for on account of incle- progress for work. The the schedule prior ment weather to March 10 held to be related project shall to the entire twenty the two week that, schedule in required by extent the the Contract allowing for time lost to weather, the it Documents. This schedule shall indi- clearly was nevertheless specified that the dates the starting cate for and masonry the work was to completed be of completion stages the various of by July At contract termina- and shall be construction revised as 5, 1971, tion on August Ethridge had work, required conditions of the on job been day one short thirty subject to the Architect’s approval.” so, only weeks. Even 60-65% the Ethridge asserts the absence had work been done. provision, of this applicability I, “Contractor’s schedule” in term Article Alabama, referent, In it 3 has no is a well settled section definite and hence, performance of contract law that principle agree is a bound to parties may time frame specific ment between consist of but must take place documents, period communications or only several within reasonable of time. tor, other or the Ethridge’s Subcontractor Con- position think We delay tractor shall be deemed a untenable. From the caused wholly regard and by the Contractor no upon extension outset, bottomed his granted on shall be account of such specified schedule for the consistently dispute. masonry work. labor Invar- specific completion for a it called iably, against Balanced consideration of date there can be As to that no date. Ethridge & whether Associates was due opin- difference of for reasonable room question whether, is the extensions ion. due, assuming that extensions were Eth- have The should been so instruct- ridge prosecuted performance had ac- evidence restricted to the oth- ed and cording to schedule as the time of infra. discussed er issues making In termination.1 this assessment must be remembered that the date of working was some 14 days termination V July 16 beyond the deadline. Neverthe- less, Ethridge had rendered only 60-65% Waiver, Delays Modifications and of its total when con- Ethridge commenced performance on was terminated. tract project Bessemer in mid-January, ante, 1971. As set forth delays work Delays A. Weather rain, weather, freezing were caused failure of other subcontractors comply Although the subcontract explicitly job sequence, the loss of some em- provided that Commercial would not be contractor, cost-plus to the ployees liable to any Associates for the carpentry the termination of subcon- delays cause, no matter what there tract. agreement evidence that may have been modified at preconstruc- One of the more crucial issues in this conference, tion so as to allow extensions whether Ethridge case was any was due delays bad weather. The extensions on account of these delays. showed that during evidence the precon- provisions relevant of the contract struction conference R. B. Ethridge provided: asked Cecil Williams of Commercial if III(c) Article shall not job —Contractor schedule would be revised so as to the be liable Subcontractor delays to reflect attributable to bad affecting the delays Subcontractor’s According weather. to Ethridge, Wil- regardless work of the cause therefor. responded periodic liams revisions (d) would be made this account.2 Subcontractor be delayed Should Saxon, Contractor, testimony of Mac a witness in his work then Con- the conversation owe between tractor shall Subcontractor there- Williams, extension corroborated only an of time for version com- caused, exchange.3 Cecil pletion equal delay to the Williams testi- fied, however, that he had only then if a written claim for stated that delay revisions on account of bad forty- is made Contractor within weather only would be made if the hours from the time status of eight of the be- con- *8 got phase struction too far out of ginning delay, provided, with how- ever, delay schedule.4 resulting that no directly indirectly dispute or from a labor in- Correspondence between the parties undersigned volving Subcontrac- subsequent the preconstruction con- I, XII(a) transcript, pp. 1. See Article 3 and Article § 2. Trial 295-97. provisions require contract. Both of these transcript, pp. 2201-02, 3. Trial 2238-39. prosecuted that subcontractor’s work be in ac- pp. transcript, 4. Trial 2591-92. cordance the contractor’s 952 Bartow, 1913, 639, Tilley Ala.App. v. 8 62 that schedule indicated
ference 330; Corbin, 6 Contracts 1295 at least in some re- § So. updated be (1962). delays caused bad show spects to addition, 25, on March In weather.5 instruction on No consideration 1971, modified the construc- Commercial However, required. Commercial was so as to reflect time lost to tion schedule an on would be entitled to instruction up through March weather inclement respect assent with to this al mutual change 25 schedule ex- The March 10.6 leged modification.7 See v. McClendon Ethridge & Associates’ time for tended Reynolds Engineering Electrical some five weeks over the Cir., 1970, 320, Company, 5 432 F.2d 323- 29, January 1971. schedule previous 24; Dixon, R. Atlantic Coast Line Co. v. 525, Cir., 1951, 189 F.2d 528. 5 On the basis of the above evi Although jury a issue was raised as to dence, the issue of modification was the contract was at whether modified properly jury. submitted to the conference, preconstruction 25, change March 1971 argues Commercial if an was a modification of deadlines the con- raised, modification was jury issue of tract, and the should be so instruct- have been instructed on should the ele ed. ments of consideration and mutual as necessary to render the sent modification The March 25 [H] schedule revision binding. preconstruction conference significance. has further According to 4, place January 1971, on took which was modification, 25 the March comple- prior any performance part on the tion deadline extended to reflect de- Ethridge. point At the contract lays attributable to weather from the executory. was still The rule in Ala up of commencement through date bama is that no consideration is neces 10. An extension March of some 25 sary for the modification of an executory re-, working days was allowed in this contract; required all that par is the objection no spect, lodged assent, Young ties’ mutual v. United propriety as to the of this States, Brown, Cir., for Use of 1964, 5 facts, amount of time. Under these 933; Mills, F.2d 327 Allied Inc. v. St. then, Ethridge precluded would be from John, 1963, 69, 133; 275 Ala. 152 So.2d claiming additional time delays Williamson, 1925, 274, Moore v. 213 Ala. attributable to bad prior weather Further, 104 645. So. written executo March 10. ry may be modified by a subse agreement, quent despite oral provi B. Delays Allegedly Caused Com- sion in the contract that all modifica mercial and Other Subcontractors writing, Salmon, tions be Co win v. 1943, 285, 190; 244 Ala. Long So.2d claimed that delays 1909, 595, 675; Shepherd, 159 Ala. 48 So. Commercial and other subcontractors 4, Turnkey Schedule, 5. Defendant’s exhibit No. Letter from “Bessemer Fred Construction re- Williams, Lipscomb 5, 10, January to Cecil dated vised March 1971”. 1971; 7, Defendant’s exhibit No. Letter from jury, charge 7. In its to the the District Court Lipscomb, 31, Mac Saxon to Fred dated March included an instruction on mutual assent with 1971; Testimony of Mac Saxon with reference original reference to the written contract be- Lipscomb, to his March letter to Fred tween & Associates. 2238-39; transcript, pp. trial Defendant’s ex- transcript, p. However, Trial 3504. mutual as- hibit No. Letter from C. C. McDuff to Fred respect longer sent with to that contract is no Lipscomb, April dated case, an issue in the but it remains an issue on question Therefore, 6. Defendant’s exhibit No. Letter from of modification. Mac remand, Associates, charge Saxon to R. B. dated the Court’s on mutual assent 25, 1971; solely March should be directed Defendant’s exhibit No. to modification. *9 prevented performance basis accordance tractors. The for this claim is the testimony Ethridge with the contract schedule. of R. B. Although that C. C. by represented there was evidence which the of Commercial jury McDuff could have determined that several occasions that Ethridge Ethridge him on delayed, the question delays was so threshold be credited with by caused not, contract, or under the was whether other subcontractors.8 only docu- legal basis for allowing mentary there was a cred- evidence such a representa- delays. however, tion, it for these relevant con- was a written notice provision 111(d): tract is Article received from Commer- February cial on 1971. It provided: be delayed Should Subcontractor Contractor, by his work then Contrac- CREDIT tor shall owe Subcontractor therefor only an extension time for comple- Housing Turnkey Bessemer caused, equal delay tion February 25, 1971 if a written only- then claim for delay within forty- is made Contractor R. SUBCONTRACTOR: B. eight hours from the time of the be- Associates, Inc. provided, ginning delay, however, days in foot- Two CREDIT FOR: delay resulting directly that no or indi- ing. Donahoo rectly dispute from a labor involving not have does undersigned Subcontractor, other pads structural or the Subcontractor Contractor shall ready. delay by be deemed a caused the Con- tractor and no extension shall be Defendant’s No. 6. exhibit on account granted of such labor dis- pute. date, At a later Ethridge submitted delays two notices of by caused dispute Much of this other turned on wheth- subcontractors,9 but there is no er Commercial waived the evidence requirement as to what action was taken delays notice of Commer- that be submitted to the cial on these documents. general contractor within 48 hours after the commencement of delay.
R. B. testified that Mr. Thus the District Court did him McDuff told that Commercial would submitting not err in to the jury the keep a tabulation of weather and question sub- of whether or not the contract delays contractor and that it would be was modified so as to allow Ethridge unnecessary give written every delays notice credit caused other subcon day; that had, However, on oral notice McDuff in tractors. the matter does not fact, given time credit. end here. The modification which Eth whth ridge respect claims to extensions If McDuff acting within his delays caused other subcontrac authority, this was sufficient to raise a place, tors is one which took all, if at jury issue as to waiver of written notice. after commenced. In addition to being allowed exten- delays sions for caused by Commercial, modification, taking place Such while provided 111(d), as in Article a contract is executory and before a promised claimed was also exten- breach,10 breach or a threat of does not delays sions other subcon- require consideration to be binding. See transcript, pp. 8. Trial Ceafco, 398-402. Inc., 1975, 294 Ala. 321 So.2d distinguishable from this case. In Mo- exhibits, 9. Defendant’s Nos. 33 & 34. Turnkey, bile it is clear the contracting party was in breach of its contract at the time Turnkey 10. The recent Alabama case of Mobile agreed modification was to. Housing, (Commercial Contractors, Inc.) Inc. *10 954 in force after the time tract as still States, for Use v. United Young passed.” has performance 1964, 933, Cir., 327 F.2d
Brown, 5 Williamson, 1925, 935-36; v. 213 Moore 1916, Lowy Rosengrant, v. 196 Ala. 649; 645, Pioneer Sav- 274, 104 So. Ala. 439, (citations omitted); 337, 442 71 So. Nonnemacher, v. Company Loan ings Thompson 1952, Thompson, also See 30 88. 1900, 127 Ala. So. 393; McAnelly 257 Ala. So.2d Company v. Bemis Brothers
Hardware Bag Company, 208 Ala. 94 So. VI 567. Breach Waiver jury was if instructed that accepted performance from Commercial event that Ethridge In the Ethridge past deadline, the contract such extensions, ques entitled would constitute a conduct waiver of by accepting whether as to tion arose stipulation, time and strict the time for beyond July 16 deadline performance performance would then be altered to a right waived its to termi Commercial period of time. reasonable This instruc comply failure the con nate for accurately controlling reflected the tion The rule in Alabama is tract legal principles. provides that where a contract time essence, party However, whose is of consideration of waiver of provision runs must make an favor would be only the breach confined to performance the time for when election jury those instances where the found party may arrives. He ei by the other Ethridge was entitled to no exten- the contract terminate and hold the ther all it sions at or where found the total breach, or party in waive the time other days number of allowable for extensions accept performance requirement Otherwise, less than fourteen. period a reasonable of time. within schedule deadline would be moved be- August 5 date yond of termination party to whom delivery “Where by virtue of the extensions. On remand within has not been made the time should be according- instructed not treat stipulated does ly, and its consideration of waiver breached, but evidences to the as other should be carefully breach delineated. thereto, purpose party continue it force, or to reserve to himself the VH right perform- to insist on its further time, at some future he ance waives Impossibility of Performance limit, and for a the time reasonable major A thrust of counter- the respective parties time thereafter was that it claim was excused from fail- by the terms of are bound the con- perform ure to on account of acts tract. prevented hindered or “One cannot claim the benefits of a performance. Primary its reliance was upon contract and insist its placed further on the fact that Ethridge lost at performance, and at the same eight, time ask perhaps more, least of its its occurs, dissolution. When a breach Tillery brick masons to Masonry Corpo- an election must be made ration, between who was retained by Commercial treating the contract as dissolved in complete buildings the ten relin- toto, insisting upon per- further by Ethridge in quished Change Order formance. The choice is made once that, No. claimed because for all. . . Even when time is Commercial had allowed Tillery to hire declared to be of expressly away Ethridge’s men, the essence some of Commer- contract, may be waived improperly cial had prevent- hindered or party conduct of the Ethridge’s performance. Therefore, whose ed made; as, stipulation benefit claimed that instance, recognizes where he the con- was excused. *11 deadline, plus the time junc original due for deciding it at this
Without validi extensions. grave doubts of the have we ture an im there is While claim. ty of If a jury should find that good cooperation condition plied provisions contract were waived we contracting parties, between faith so as to or modified allow extensions for that a cases which hold no found have delays, the next question, various assum a subcon promises contractor general ing allowed, that extensions were would will not that he implication by tractor be whether Commercial’s termination on a subcontractors other men to lose wrongful. XII(a) was Article of the con sub even if the other job construction gave right tract Commercial the to ter wage. may paying higher be contractor whenever minate the subcontractor to the view that under We lean prosecute failed to its work according to developed impossibility evidence the We construe the term “prose sub not have been should to mean render timely perform cute” in Eth this case. as a defense mitted throughout ance period entire allot providing the risk of la assumed ridge performance. Hence, ted for Commer wheth included the risk of bor, that cial could invoke the right to terminate competitive with other could be er he that the at time subcontractor failed build in an overcrowded subcontractors substantially perform to according to market. ing schedule. The contract did not require industry the construction in Unless to Commercial await the time for full known custom to con- well is a there performance before it could exercise the not see how Commercial trary, we do power of termination. Even though guarantee to a Eth- that be held could Ethridge may have been granted exten would not be affected work force ridge’s to causes, sions due various it could subcontractors, even on competing by be nevertheless found in breach if a de job. same that, termination were made notwith by appellate issues raised The other extensions, standing perform substantial been considered and have parties ance would have been delivered by merit. to be without found of the new date schedule deadline. Assuming that grant- extensions were ed, question the crucial would be: Would VIII Ethridge performed have the remaining of its work during 35—40% the time peri- for Future Some Caveats Reference by not, od created extensions? If then Although Ethridge asserted that by termination Commercial would have provisions certain of the contract were justified, been and it would be entitled or permit either waived modified so as to damages provided as by the con- delays it extensions tract. contractor, general subcontractors, other hand, other On the if it were found weather, there or bad was no evidence that performed have provision calling that the basic for ulti during remainder of its work the allowa- performance according mate to the con period, ble extension then termination (cid:127) tractor’s schedule ever waived or would be wrongful and Eth- Thus, the finding modified. effect of a prevail. would be ridge entitled to entitled to extensions merely adjust comple would be Because the concept of a schedule in- amount equivalent tion deadline volves a certain amount of mathematical precision, exten to the time allowable such instructions to jury grant sions. A extensions would not this case on the question of extensions responsibility carry degree relieve should of mathematical complete certainty. its work accordance with the number, all extensions. From this prior instruc Court’s Under separately “14”, consider should deduct number repre- was to tions, the senting days the excess provision that a that Ethridge claim each job July 16, was on the after was either waived or 1971. The remainder from this partic extensions for a last to allow calculation modified represent the net Having made determi would amount days cause. ular each for extensions. respect separate Equipped allowed with nation *12 extensions, jury figure, as a cause should then alleged calcu- ground consider whether late whether or not Ethridge to then would have jury according performed remaining perform failure 35-40% of its particu period for that work within the time excused represented to schedule Conceivably, under such a extension by the net due. lar cause. jury could of instructions scheme judgment of District Court is allotted to if the extension find reversed and the cause remanded for move schedule dead cause one proceedings further not inconsistent termination, of then date past line herewith. be excused from failure Ethridge would Reversed and remanded. would be entitled to re perform, This, obviously, enough. is not cover. extensions, subject jury of theOn BROWN, JOHN R. Chief Judge (con- following consider first should curring): given: the order points, fully I in the concur opinion excellent modified so as to the contract (1) Was Judge of Coleman written for the Court. Ethridge extensions for the work- allow only suggest upon I remand the so, bad weather ? If days lost to ing complex factual issues concerning per- days number of after was the what extensions formance which are discussed which was entitled 10 to March in Part VIII majority opinion,1 account? on this be resolved most could expeditiously if the trial Court utilized the marvelous the contract modified so as to (2) Was general charge tool of a with special in- days extensions for the allow under terrogatories provisions of by other subcon- delays caused lost 49(a).2 F.R.Civ.P. Brown, See generally, so, many days to how If tractors? Special Federal Verdicts: The Doubt on this is entitled extension Eliminator, 1968, 338; Joiner, F.R.D. account? Jury Improved Procedures, 1970, Trials — (3) there waiver provi- Was 86; 48 F.R.D. Wright, The Use Of which required in the contract Eth- sion Special Court, Verdicts In Federal ridge give written notice 199; 38 F.R.D. See also Modern Federal delays caused Commercial within Digest, Practice Fed.Civ.Proc. 2231-41. after commencement 48 hours so, delay? many days If to how such procedure Had this been utilized at the is for delays extension entitled initial trial of the hand, case at by Commercial? quite likely that much of the retrial Next, jury should would have calculate the to- been unnecessary, for this Court, days, any, if on appeal, tal number of allowed for would have been able pp. 955-956. 1. See Judge and the trial on a tightrope treacherous walk caused 49(b) fact that under emphasis placed 2. Too much cannot be on the general (not charge) verdict special and the solely speaking 49(a) fact that I am about conflict, answers they do, must not for if both 49(b) trap unwary which is for the not law- extinguished. are For further discussion of yer appellate Judge. or or trial distinction Brown, this distinction see Special Federal 49(a) gener- is that between the two melds the Eliminator, Verdicts: supra The Doubt at 339- charge juries’ spe- with the answers to al interrogatories controlling. cial are 49(b) on the other hand launches both counsel issues which were out those to ferret verdict or by the were
unsubstantiated matter of law.3 jury issues as a America,
UNITED STATES
Plaintiff-Appellee,
v. Hay Green, KILGORE Sam
Gerald Defendants-Appellants.
No. 71-3559. Appeals, Court of
United States Fifth Circuit. 12, 1975.
Dec.
Georgia
demonstrating
utility
3. See Horne v.
Southern and Florida
cases
49(a)
Co.,
1970,
Railway
Cir.,
avoiding
complex
5
421 F.2d
980
confusion
g.,
cases see e.
(Brown,
J., concurring)
Casualty Co.,
C.
where we
Little
Cir.,
were able
v. Bankers Life &
5
holding
(Brown,
J.,
affirm the
trial Court and
426 F.2d
512
C.
concur
49(a)
ring);
special
Hart,
avoid retrial
Cir.,
because the use of
American
Oil Co.
interrogatories
us to
356 F.2d
allowed
conclude that 659. See also Griffin v. Math
erne, Cir., 1973,
(where
erroneous decision of one issue was harmless