International Production Specialists, Inc. (IPS) entered into a contract with Schwing America, Inc. (Schwing) to make and install five silos to store and treat sludge at a wastewater treatment plant owned by the general contractor, North Shore Sanitary District (NSSD). Initially IPS’s piece of the process was to take about eight months. After several years of delays— some attributable to NSSD, some to IPS, and some to events beyond anyone’s control- — -nearly three-and-a-half years after the parties signed the initial purchase order, the project still had not been completed. On February 11, 2005, Schwing notified IPS that it was cancelling the contract for cause. IPS responded by suing for breach of contract and Schwing counter-sued. The district court ruled in favor of, Schwing, awarding damages in the amount of $467,140.02. We affirm, but remand in part to correct a small error in the calculation of damages.
I.
This case comes to this court after a trial in the district court. The facts of this case, as determined by the trial court, are long and tedious, but necessary for a full understanding of the intricacies of the relationship between the parties.
Schwing and IPS were both subcontractors on a larger project to build a waste-water treatment facility. In 2001, NSSD hired VoesL-Alpine Industries, Inc. (VA Tech) to work on the construction of its new wastewater treatment plant in Waukegan, Illinois, agreeing to pay it $6.6 million. VA Tech, in turn, entered into a $1.25 million subcontract with Schwing to supply and install two wet sludge silos, a dry granules silo (conical silos), two receiving bins, and other associated equipment for the NSSD facility. Pursuant to the terms of the contract with VA Tech, Schwing obtained a performance bond.
Schwing’s operations manager, Nancy Predatsch, decided to find a local contractor to fabricate the silos. A web search turned up IPS, a Wisconsin manufacturer of construction equipment, including standard and custom built bulk material handling equipment. On August 20, 2001, IPS and Schwing executed a purchase order in which, for payment of $666,372, IPS agreed to manufacture and install at the NSSD Waukegan ■ facility the five silos, incorporating the specifications and technical supplies from the VA Tech-Schwing contract.
By attachment, the parties set forth a delivery, installation, and payment schedule. (D. Exh. 1004 at p. 4) 1 . According to the delivery schedule, IPS was to deliver all of the silos (the two receiving bins, the two wet storage, and the one dry storage) by December 28, 2001. The installation schedule was labeled “approximate” and noted the following dates:
Two (2) Sliding Frame Silos (Receiving Bin), Approximately February 1, 2002 2
Two (2) Sliding Frame Silos (Wet Storage), Approximately February 15, 2002 One (1) Conical Silo (Dry Storage), Approximately April 15, 2002
Id. A note below the schedule states, “[ajctual schedule will be dictated by progress on the plant construction contract. Installation activity will need to be coordinated with the site contractor.” Id. The delivery schedule contains no such approximate language.
IPS’s Executive Vice President, Jordan Kopac, Jr. managed IPS’s work directly on site as IPS worked through the late summer and fall 2001. Sehwing made progress payments to IPS totaling $595,692.
In November 2001, NSSD decided to suspend work on the project. Consequently, on November 30, 2001, Sehwing sent IPS a facsimile directing IPS to cease on-site work, but to continue fabricating the two receiving bin silos at the shop, as scheduled. Sehwing also informed IPS that it could continue to deliver materials to the site and unload them, but they should not be fabricated on site. ' Sehwing estimated that the work stoppage would continue for ninety days and asked IPS to inform Sehwing of any cost changes associated with the schedule change.
On April 11, 2002, VA Tech inspected IPS’s work on the silo parts. Representatives from VA Tech, NSSD, IPS, and Sehwing attended the inspection. The next day, a Sehwing representative sent out an e-mail identifying fifteen problems with the silos including improper painting and welding. (Pl.Exh.17). A VA Tech representative also prepared a memorandum noting manufacturing defects, including poor painting and improper welding. (Pl.Exh.18). At the time of the memorandum, 90% of the receiving bin silo manufacturing had been completed, as had 50% of the wet sludge silos and 40% of the dried granules silos. Of course, no installation had begun or was yet required. After the inspection, the project lay dormant for approximately two years — until about February 19, 2004, when VA Tech notified Sehwing that NSSD had restarted the project at a new site in Zion, Illinois and that VA Tech expected Sehwing to honor its contract. VA Tech did not increase its payment to Sehwing.
Sehwing, in turn, informed IPS that the project was restarting and that Sehwing expected IPS to honor its contract. Schwing’s project manager asked IPS to inform him of any additional expenses that IPS might incur as a result of the change of location.
IPS responded that a “deep silo fabrication lay-down area”' — in layman’s terms a work area — would be necessary at the Zion site and would be used to fabricate and store the wet sludge silos on site. It provided two field service quotations for a total of $210,500.
In spring 2004, representatives from Sehwing, IPS, VA Tech, and NSSD met to view the project site, coordinate the silo construction site, discuss scheduling, and review potential lay down sites where IPS could work on the silos. Sehwing asked IPS’s vice president, Kopac, to identify IPS’s lay-down area preference and to present Sehwing with a proposal for reimbursement, of the additional costs for relocating the project and transporting materials. ■ •
After the meeting, IPS’s Kopac called Schwing’s project manager, David Miller once, but did not identify his lay-down area preference. Miller left a number of unreturned messages for Kopac and eventually called IPS’s president, Jordan Kopac, Sr., who informed Sehwing that IPS would not be participating in the project because the new site was problematic. IPS maintains that had a suitable work area been provided, IPS would have been able to complete the project in three to four months. The
Schwing solicited bids from other companies to complete IPS’s work, but those bids were high compared to Schwing’s contract with VA Tech, factoring in the payments Schwing already had made to IPS. Consequently, Schwing wrote to IPS on June 10, 2004, asking IPS to honor the contract and resume work, or, in the alternative, return all payments it received.
IPS responded that the agreement it had made was for the Waukegan site and not the Zion site, stating further,
IPS stands ready, willing and able to perform per its contract with Schwing. We are not willing, however, to modify the terms of our contract and commit to the performance at a new site that poses potential pitfalls and complexities that did not exist with respect to the Waukegan site. From a complexity of performance standpoint, the Zion site, being a full-blown construction project, is substantially more complex.
(Pl.Exh.4).
Notwithstanding IPS’s position, Schwing and IPS continued to negotiate. On July 12, 2004, IPS sent a quote to Schwing indicating that for approximately $264,084, it could complete the project at the Zion site. The quote contained three general notes (only note one and two are relevant to this appeal).
GENERAL NOTE # 1
Additional costs from the original 2001 job quotation in Waukegan based on an August 2004 start date with the majority of the main & coned silo work expected to be completed by September 30th, 2004.
GENERAL NOTE 3:
IPS has requested and to-date has not received a Zion Project time lines [sic] from Schwing, NSSD or the General Contractor. Therefore IPS will not be responsible for any monetary penalties on this project caused by unrealistic milestones, delays caused by others or acts of God.
(D. Exh. 1012,1017).
On July 29, 2004, the project manager from Schwing e-mailed IPS’s Kopac a proposed change order which included nine additional work items with a proposed additional payment. IPS increased the change order price to $143,630 and noted the outstanding purchase order balance of $99,946, for a total price of $243,576. Kopac quickly sent a return e-mail back to Schwing proposed revisions including that general notes 1-3 of the July 12 quotation be incorporated. IPS also requested a final paragraph that stated:
No other changes to this order apply at this time. Access to silo installation area infrastructure for eventual silo placement into the General Contractor[’]s facilities or the use of the General Contractor[’]s material handling equipment or requirements for the hiring of General Contractors labor personnel has not yet been established by Schwing America Project Manager and must be established. Additional charges may apply if accessibility is delayed or limited, and charges from the General Contractor or unforeseen issues arise.
The modifications requested by IPS were incorporated into the final change order which was executed on August 12, 2004. (D. Exh. 1017)
That same day, the new Schwing project manager sent Kopac a copy of a “classic layout schedule” common on large construction sites, scheduling activity at the site. The time line contained the following dates:
install truck August 11, 2004 August 12,2004 receiving bins
install wet December 2, 2004 December 3, 2004 sludge silos
install dry December 6, 2004 December 10, 2004 granules silos
(D. Exh. 1013)
Schwing made a 30% progress payment of $69,172 on August 9, 2004, and then again on August 24, 2009. IPS installed the two receiving bin silos on September 8, 2004. On September 24, 2004, IPS’s Kopac sent Schwing an e-mail stating that NSSD had informed IPS that it wanted the remainder of the silos the first week of October. Kopac told Schwing that this was the first he had heard of this time frame, and that IPS had been planning on delivering the first week of December, referencing the specific lines in the layout schedule which showed a December date for the wet silo installation. On October 29, 2004, IPS sent Schwing an invoice for a 20% progress payment. Schwing called IPS and noted that the underlying work had not been completed. IPS agreed, and thus Schwing withheld the payment.
From this point forward, things began to deteriorate rapidly. Schwing’s operations manager began to hear reports that IPS was delaying the NSSD project and that, with only two workers on site, it was not providing adequate staff for the work. YA Tech began calling Schwing, threatening to call Schwing’s performance bond because the work was not progressing.
By November 9, 2004, the Zion site was ready for the installation of the two wet sludge silos. IPS indicated that the two wet sludge silos would be installed by December 20, 2004. On December 14, however, Schwing’s field project manager received a report of welding defects in IPS’s work. On December 22, 2004, Schwing asked IPS to provide a date for installation of the silos. IPS responded that the silos would be on transport trucks by January 21, 2005, and ready for transportation by January 24.
Concerned about the delays, Schwing engaged its former project manager, David Miller, as an outside consultant to go to the Zion work site for two weeks and put matters back on track. Miller testified that the job site was in disarray and chaotic, that the two wet sludge silos were only fifty percent complete, that the dry storage silo had not been assembled, and pieces of it were still at the Waukegan site. He testified further that IPS had sufficient work space. Miller spent some time assisting with welding and fabrication.
While Miller was on site, IPS’s Kopac raised concerns that the road was insufficient to transport the wet sludge silos from the lay down area to the building site. Kopac, Miller, and a representative from the general contractor, J.J. Henderson, walked the site, discussed the road conditions, and laid out flags indicating where Kopac wanted the general contractor to place additional gravel. At some point not identified in the record, J.J. Henderson put down the fresh gravel.
On January 25, Schwing paid IPS’s outstanding October 29, 2004 invoice. On February 3, IPS sent a revised quotation with a cover note that stated “[t]his covers the eventualities that the delays in preparing the site continue for an unforeseen time” [sic] and proposed additional charges of $43,548.30. Schwing believed that the additional charges were improper because IPS included installation costs which were part of the original purchase order and were not removed in the change order. IPS believed that the change order did not address silo installation at the Zion site and therefore the purchase order only obligated IPS to install at the Waukegan site.
On the same day that IPS sent the revised quote, Schwing inspected the paint
In a February 11, 2005 letter, Schwing terminated IPS’s contract citing delays and the increased costs flowing therefrom. (D. Exh. 1034). The letter noted that the schedule required installation of the wet sludge silos by November 30, 2004, and the dry granules silo by December 2004. Id. The letter also stated that IPS’s failure to complete the project within the agreed time frame caused delays and thus additional costs to the project for which Schwing would hold IPS liable. Id.
Schwing hired J.J. Henderson, Northeast Water Technologies (NWT), and Manta Industrial and Prime Coat Corporation to finish the remaining work. Schwing paid J.J. Henderson $231,515.65 for labor, equipment, and rigging of the wet and dry sludge silos. It paid NWT $87,388.78 to complete fabrication of the dry granules silo and to transport four remaining sections of the roof and other miscellaneous pieces from Waukegan to Zion. Schwing paid Manta $202,730 to sandblast and repaint the interior of the silos with coal tar epoxy, and paid $24,826 to Prime Coat to paint the exterior of the three silos. {See D. Exh. 1039).
IPS filed suit alleging that Schwing lacked cause for cancelling the contract and that Schwing was liable for IPS’s damages. Schwing counterclaimed arguing that it justifiably cancelled the contract after IPS breached and that IPS was liable for damages incurred by Schwing due to IPS’s delays and deficient performance.
The action was initially filed by IPS in the Circuit Court for Racine County, Wisconsin but removed to the district court by Schwing as the parties are diverse and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. IPS is incorporated in Wisconsin with its principal place of business in Wisconsin and Schwing is incorporated in Minnesota with its principal place of business in Minnesota.
See Pastor v. State Farm Mut. Auto. Ins. Co.,
After a two-day trial, the district court concluded (1) that Schwing was justified in cancelling the contract after IPS materially breached, (2) Schwing did not breach the contract, and (3) that Schwing sustained damages in the amount of $467,140.02. We affirm in most part and remand for a recalculation of damages.
II.
The parties dispute the standard by which we review various aspects of this case. “The fixing of the boundary between questions of law and questions of fact, is a matter of federal procedural law and therefore governed by federal rather than state law in diversity as in other federal suits.”
Dilworth v. Dudley,
A. Breach of Contract
The district court concluded, and the parties do not contest, that Wisconsin law applies to the agreement in this case. Under Wisconsin law, a material breach of contract releases the non-breaching party from performance of the contract.
Mgmt. Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co.,
The first step in such a determination is identifying the contract and what it required. The district court determined that the September 5, 2001 purchase order, and the August 12, 2004 change order together formed the contract between the parties. (R. 32 at p. 23). The question before this court is interpreting what, if anything, those orders say about performance standards and deadlines.
When a contract is silent on the time for performance, a reasonable time is implied.
Delap v. Inst. of Am., Inc.,
The original 2001 purchase order clearly identified a time frame for performance, requiring delivery by December 28, 2001, and installation by the approximate dates of February 1, 2002, for the two receiving bins, February 15 for the two wet storage silos, and April 15 for the dry storage bins. (D. Exh. 1004, Attachment A at p. 4). Of course, these dates were later modified by the parties; first, by a November 30, 2001 fax, in which Schwing directed IPS to continue shop fabrication, but to cease on-site fabrication until further notice (D. Exh. 1005), and later by the August 12, 2004 change order (to which we will turn our attention momentarily). These initial dates indicate that Schwing and IPS had a meeting of the minds that the project would be completed within a particular time frame — an approximately eight-month period, with installation occurring just one month from the delivery date for receiving bins, forty-nine days from delivery for the wet sludge silos, and three-and-a-half months from delivery for the dry granules silo. In sum, the initial contract contemplated a short time frame and a quick turn around time from delivery to installation.
Nothing in the language of the change order alters those expectations or modifies the contract from one requiring specific dates to one requiring only a reasonable time for performance. In fact, the change order specifically states that other than the changes specifically iterated in the change order, “no other changes to this
General Note One to the change order states that “the majority of the main & coned silo work [is] expected to be completed by September 30th, 2004.” (D. Exh. 1017, 1012) 3 . The main silo work refers to the wet sludge silos and the coned silo refers to the dry granules silos (see D. Exh. 1004), thus leaving only a smaller project — the truck receiving bins — to complete after September 30, 2004 4 . In fact, the receiving bins were installed on September 8, 2004, well before the September 30 deadline. This express language sets forth some clear expectations regarding timing. September 30 came and went without completion of the majority of the main and coned silo work.
Not even Schwing, however, seems to be arguing that IPS breached by missing the September 30, 2004 deadline from the change order. Schwing argues instead that the new deadlines came from the layout schedule — an eight-page, 399 — line spreadsheet used to coordinate all of the projects on the site. General Note Three to the change order states, “IPS has requested and to-date has not received a Zion Project time lines [sic] from Schwing, NSSD or the General Contractor. Therefore IPS will not be responsible for any monetary penalties on this project caused by unrealistic milestones, delays caused by others or acts of God.” (D. Exh. 1017 at p. 2; Exh. 1012 at p. 4). This language contemplates that the timelines will be guided by the layout schedule. In fact, IPS’s language indicates that without such a timeline, “all bets are off.” Clearly this is not a contract that anticipated that the parties would perform in a “reasonable time.” The project at hand was complex and involved coordination of many different subcontractors. The layout schedule contained approximately 400 lines of activities that were to be completed over the course of eighteen months — each activity carefully scheduled to coordinate with the project as a whole. Even IPS relied upon the layout schedule for its deadlines. IPS’s senior vice president stated in an email to Schwing, “They are actually looking for the remainder of the silos in the first week of October. This is also the first I have heard this and was planning/scheduling to be ready the first week in December [as described in the attached layout schedule] Line # s 1810 and 1990.” (D. Exh. 1022). In sum, this appears to be a contract containing specific deadlines and one that was referring to the layout schedule to provide them.
In arguing that the layout schedule did not establish deadlines, IPS raises some noteworthy points. First, IPS argues that the parties could not have intended to incorporate some of the layout schedule deadlines in their contract. For example, the layout schedule states an early finish date of August 12, 2004 for installation of the truck receiving bins. The parties, however, did not execute the
Even if we were to determine that the parties did not intend to incorporate the layout schedule into the contract, we would arrive at the same conclusion regarding the question of a material breach. If the contract contained no time for performance, the law will imply a reasonable time.
Delap,
The district court found that IPS had materially breached the terms of the contract and the record certainly supports such a determination. The original purchase order required delivery less than five months from the date the order was signed and then anticipated approximate installation dates one month from the delivery date for the receiving bins, forty-nine days from delivery for the wet stor
Nor did the district court err in finding that IPS’s reliance upon an allegedly insufficient lay-down area as an excuse for its delayed performance was not consistent with the evidence. The district court determined that persuasive, overwhelming, and credible evidence established that the Zion site provided sufficient space and roads for IPS to complete its work, and that IPS did not devote a sufficient number of workers to the project.
Finally, we need not address IPS’s argument that expert testimony as to “reasonable time” was required, as that argument was waived when IPS failed to raise it in the district court.
See Skywalker Communications of Ind., Inc. v. Skywalker Communications, Inc.,
B. Damages
Having determined both that IPS materially breached the agreement, and that the breach damaged Schwing, the district court turned to its calculation of damages. We review the calculation of an award of damages for clear error (Trs.
of Chicago Painters and Decorators Pension, Health and Welfare, and Deferred Sav. Plan Trust Funds v. Royal Intern. Drywall and Decorating, Inc.,
The district court determined that Schwing was entitled to damages to compensate it for losses it incurred by IPS’s breach. In a breach of contract action, the fundamental idea is to put the injured party in as satisfactory a position as the party would have been in had the contract been performed.
Thorp Sales Corp. v. Gyuro Grading Co.,
IPS objects to the district court’s characterization of the damages as “incidental damages.”
See
(R. 32 at p. 31). The district court noted that they could also be characterized as “cover.”
Id.
We need not quibble over the terms. Provided Schwing properly mitigated its damages as required, it is entitled to be placed in the position it would have been had IPS properly performed.
(Peterson v. Cornerstone Prop. Dev., LLC,
1. Silo installation
IPS argues first that it had no obligation to install silos at the Zion site, claiming that, because IPS did not have available sufficient information to quote installation costs at the time it signed the change order, the change order did not address silo installation at all. The district court did not address the matter directly, but by allowing damages for silo installation, inherently found that the contract obligated IPS to install the silos at the Zion site. The interpretation of an established written contract is generally a question of law for the court, and thus we review this question de novo.
Holmes v. Potter,
IPS argues that the final paragraph of the change order indicates that “issues relating to silo area infrastructure access, material handling equipment and labor requirements had not been established at the time the order was signed.” IPS Brief at 21. That final paragraph of the change order states:
No other changes to this order apply at this time. Access to silo installation area infrastructure for eventual silo placement into the General Contractors facilities or the use of General Contractors material handling equipment or requirements for the hiring of General Contractor labor personnel has not yet been established by Schwing America Project Manager and must be established. Additional charges may apply if accessibility is delayed or limited, and charges from the General Contractor or unforeseen issues arise.
(D. Exh. 1017 at p. 2). Under the plain language of this paragraph, the parties anticipated that IPS would install the silo at the Zion site and that additional charges might apply, but only if IPS’s access to the site was delayed or limited or other unforeseen issues arose. The only unresolved installation issues, therefore, were questions regarding access to the site, use of the general contractor’s materials and labor, and possible unforeseen issues. The final note assumes that the contract covers installation at the Zion site.
IPS’s vice president Kopac testified that installation was not included in the change order. Schwing’s operations manager, Predatsch, testified to the contrary. Although the district court did not make an explicit factual finding, by granting Schwing damages for silo installation, it determined that the change order included installation of the silos at the Zion site. Such a determination makes sense to the narrative of this case. Recall that after Schwing asked IPS to honor the original agreement, IPS responded that the agreement it had made was for the Waukegan site and not the Zion site. Negotiations continued and after several exchanges, the parties signed the change order and IPS resumed its work at the Zion site. Not only does the plain language of the change order demonstrate an agreement to install at the Zion site, but the parties’ actions demonstrate an agreement that IPS would continue performing and install the silos at the Zion site.
2. Painting and coating
Each party in this case presented evidence regarding the sufficiency of the coating and painting of the silos, both inside and out. After hearing the evidence, the district court determined that Schwing
3. The warranty
IPS further claims that Schwing waived any claim for defective workmanship by failing to present a warranty claim to IPS as IPS claims was required by the contract. Paragraph K of the contract stated,
K. Warranty: One year parts and labor. One year commences upon acceptance by owner. I.P.S. shall be responsible for replacement or repair resulting from defective workmanship or non-conformance to Schwing-furnished designs, approved shop drawings or standard fabrication procedures. Warranty is to be performed by I.P.S. others authorized by I.P.S.
(D. Exh. 1004).
In short, IPS argues that Schwing had a contractual duty to give IPS the first stab at repairing any defects or damage. The parties engage in much back and forth over whether either of the parties waived this issue by failing to raise it below. IPS raised it below, at least nominally, by claiming in its post-trial brief that “Schwing is not entitled to any damages because ... it did not comply with the requirements of paragraph K of Attachment A to the original purchase order which required that any warranty claim work be performed by IPS.” (R. at 24 at p. 8).
See Oscar Gruss and Son v. First State Bank of Eldorado,
In any event, there is no question that, at trial, the parties had the opportunity to present evidence as to whether IPS had a fair chance to correct defects or damage, and the district court considered this matter in the course of arriving at its holding. The district court noted that Schwing gave
IPS argues, in the alternative, that Sehwing complained only of drips and runs and the thickness of the exterior shell coatings on the wet sludge silos and that, even if it did give sufficient notice for these items, such notice did not relieve Sehwing of the duty to tender warranty claims for other work before contracting with others. The district court concluded, however, that Sehwing gave IPS sufficient notice of its dissatisfaction, not only with the quality of the work, but also with IPS’s tardiness in completing the project. It was this failure to perform on both fronts— timeliness and quality — that allowed Sehwing to repudiate the contract and mitigate its damages by retaining other companies to either complete the unfinished work or redo the non-conforming work as appropriate. (See R. at 32 at p. 27).
4. Amount of damages
As to the amount of damages, a matter we review for clear error
(Gaffney v. Riverboat Servs. of Ind., Inc.,
(1) $68,500.00 to Northeast Water Technologies (NWT) for completion of fabrication work (March 5, 2005);
(2) $75,250.00 to J.J. Henderson for labor, equipment, and rigging of the wet sludge silos into place. (February 14, 2005);
(3) $45,054.00 to J.J. Henderson for labor, equipment, and rigging of the dry granules silo into place (May 10, 2005);
(4) $18,888.78 to NWT for documented additional work items including meetings, inspections, repairing manufacturing defects, and supplies (September 1, 2005);
(5) $13,891.32 to J.J. Henderson (December 19, 2005) 5 ;
(6) $42,826.02 to Prime Coat for painting the exteriors of two wet sludge silos and the dry granules silo (December 28, 2005); and
(7) $202,730.00 to Manta for repainting the interior of the two wet sludge silos and the dry granules silo with coal tar epoxy (December 20, 2005).
(R. at 32 at p. 33) (see also D. Exh. 1044).
We do, however, find one small error. At the time of the breach, Sehwing had not yet paid IPS $46,116 dollars that would have been owed had IPS completed the contract. By failing to deduct this money from the damage award, Sehwing was placed in a better position than it would have been in had IPS performed. Sehwing received damages to cover its costs for completing the work, but also was absolved of its requirement to pay the remaining $46,116 of the contract. In essence, Sehwing was rewarded twice for the breach. Sehwing is incorrect that IPS waived this argument. In its post-trial brief to the district court, IPS argued that the damage “sum must be reduced by $46,114, the final 20% installment under the change order that Sehwing did not
Finally, the district court concluded that Schwing owed IPS $2,000 for moving two power pacs from Waukegan to Zion. The district court concluded that the work was not part of the parties’ contract, but based on Schwing’s stipulation at trial that $2,000 in compensation for these services was acceptable, the district court concluded that Schwing should reimburse IPS for these costs. IPS seems to have viewed this concession as an opportunity to get the rest of the camel under the tent. Toward that end, it argues not just that Schwing and IPS had a separate agreement to transport two power pacs from Waukegan to Zion, but that the parties had an entire oral contract regarding installation of the silos (a matter, we have already concluded was included in the written contract). The existence of an oral agreement is a question of fact that warrants deference to the district court.
Podolsky v. Alma Energy Corp.,
For the foregoing reasons, the district court is Affirmed in part, and Reversed in part with instructions to correct damages in a manner consistent with this opinion. IPS shall bear the cost of this appeal.
Notes
. Exh. References are to district court trial exhibits; D. Exh. to the defendant, Schwing’s exhibits and PL Exh. to the plaintiff, IPS’s exhibits. Tr. references are to pages in the trial transcript.
. The purchase order actually lists these dates as 2001, but it seems clear that this is a scrivener’s error and should be 2002. Of course the equipment could not be installed until after it was delivered. Furthermore, when the parties signed the purchase order on September 5, 2001, the February and April 2001 dates would have been nine and four months past, respectively.
. The change order (D. Exh. 1017) incorporated by reference three general notes from IPS estimate # 1520 (D. Exh. 1012), drafted by IPS.
. The initial purchase order contemplated delivery of all of the parts on December 28, 2001, and installation of the truck receiving bins just a mere 31 days later, so we may assume that this was the fastest of the projects.
. These numbers differ from Schwing’s charges incurred (see infra at section I and D. Exh. at 1039), as not all of the payments to JJ. Henderson were attributable to IPS’s breach (see Tr. at 156-58).
. In calculating the amount of the unpaid balance of the change order, Schwing twice correctly calculates the number as $46,116. See Schwing brief at 35, n. 12. In a parenthetical explaining the calculations, however, Schwing mis-typed that number as $44,166. According to both Schwing and IPS’s calculations, the correct number is $46,116.