362 N.E.2d 269 | Ohio Ct. App. | 1975
This appeal by plaintiff-appellant, Wren Reese, Inc., is from a judgment by the Lucas County Court of Common Pleas in favor of defendant-appellee, Great Lakes Structural Concrete Products, Inc., in a non-jury trial involving an alleged breach of contract by defendant. Plaintiff is a general contractor which had a general contract with the state of Ohio, executed June 15, 1973, following a public bidding on May 23, 1973, for the construction of a bridge in Marion, Ohio.
Prior to submitting its bid, on May 23, 1973, plaintiff solicited bids from prospective fabricators for the fabrication of one hundred 36" I-beams, an element of the bridge *169 to be constructed. The bids were only for fabrication and did not involve on-site labor. On May 22, 1973, defendant orally submitted to plaintiff a bid of $104,500 for the one hundred I-beams.
After plaintiff executed its bridge construction contract with the state, on June 15, 1973, it advised defendant that its "bid was good." On June 27, 1973, plaintiff wrote to the state and requested that the defendant be approved as fabricator for the bridge construction.
On July 6, 1973, the state testing laboratory called defendant to determine its production schedule incident to the approval of defendant as a fabricator. Defendant stated production would not start until December 1, 1973. Since approval of a fabricator requires inspection for approval approximately three weeks before the fabricator starts to fabricate prestressed members (as in this case), the state testing officer stated that the inspection of defendant would be delayed until then.
On July 12, 1973, defendant wrote to plaintiff and unilaterally increased its price for the I-beam from $104,500 to $109,750, an increase of $5,250. On July 13, 1975, plaintiff wrote to defendant stating it would not accept the price increase and would hold defendant to its original contract price of $104,500.
Thereafter, in August 1973, defendant repudiated the contract and refused to perform. Plaintiff then shopped for bids from other fabricators and finally executed a contract with Yost Company which furnished the I-beams for a contract price of $119,995. Plaintiff paid this price to Yost Company and sought to recover damages for breach of contract in the sum of $15,495, the difference between $119,995, which Yost received, and the $104,500, which defendant had originally bid.
The trial court decided that defendant was not obligated to plaintiff and that the contract between plaintiff and defendant was void because defendant was a subcontractor and that defendant, as a subcontractor, had not been properly qualified for the work sublet to him before the subcontract was executed between *170
plaintiff and defendant. The trial court concluded that such subcontract qualification of defendant was required by R. C. Chapter 5525, governing public contracts for state highways and bridges. R. C.
"No successful bidder shall enter into a subcontract with any other person, involving the performance of any part of any work upon which such bidder may be engaged for the department of transportation, unless the subcontractor has been properly qualified for the work sublet to him."
The plaintiff's three assignments of error are as follows:
"1. Ohio Revised Code Sec.
"2. The trial court erred in finding that O. R. C. Sec.
"3. The trial court erred in denying appellant's Rule 59 motion because its findings were the result of a mistake of law."
The assignments of error are well taken. We reverse.
Incident to rendering a general judgment in favor of defendant and dismissing the complaint, the trial court entered a finding of facts separate from its conclusions of law. The following separate findings of fact and conclusions of law are correctly stated and are amply supported by the record.
"This court finds that defendant entered into a contract with plaintiff; that plaintiff relied on that contract; and that the defendant was bound to perform. Although no time limit was set by the sub-contractor within which the contractor was to accept, this court finds that plaintiff did *171
act within a reasonable time according to the custom of the trade at that time, tried to get state approval of the defendant sub-contractor-defendant, and that defendant violated the terms of the contract. The court further finds that plaintiff acted within a reasonable time as enunciated in Wargo v. Cox,
R. C.
"Sec.
"Sec.
It is beyond dispute that defendant in agreeing to fabricate and to furnish one hundred I-beams to plaintiff did not agree to "perform on the job site" within the meaning of Section
The director of transportation, in discharging the statutory function of the Department of Transportation and in exercising its statutory duties and powers, had authority in the written contract with plaintiff for the bridge construction to provide for a definition of subcontractor and fabricator.1
R. C.
In interpreting statutes, R. C.
As a fabricator, defendant had to be approved by the Department of Transportation as provided in Section
An approval of the defendant as a fabricator was not accomplished because, as the trial court correctly found, the defendant had repudiated its contract with plaintiff before the start of the actual construction of the fabricated items. This repudiation of its contract by defendant occurred before an approval of defendant was required or could be obtained in accordance with Section
Defendant relies heavily upon the case of Weybrecht Co. v.Hartford Indemnity Co. (1954),
Judgment reversed.
WILEY and POTTER, JJ., concur.
"All duties, powers, and functions conferred by law on the department of transportation and the divisions of the department shall be performed under such rules as the director of transportation may prescribe, and shall be under his control. * * *"
R. C.
"The functions of the department of transportation with respect to highways shall be:
"(A) To establish state highways on existing roads, streets, and new locations and to construct, reconstruct, widen, resurface, maintain, and repair the state system of highways and the bridges and culverts thereon * * *."
See, also, 27 Ohio Jurisprudence 2d 110, Highways and Streets, Section 85, and 27 Ohio Jurisprudence 2d 32, Highways and Streets, Section 17.
"If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters:
(A) The object sought to be attained;
(B) The circumstances under which the statute was enacted;
(C) The legislative history;
(D) The common law or former statutory provisions, including laws upon the same or similar subjects;
(E) The consequences of a particular construction;
(F) The administrative construction of the statute."
"Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."
"