Jaye Smith Construction Co. v. Board of Education

On appeal is a judgment in an action to recover the cost of certain redwood decking supplied to defendant under a construction agreement. At trial, plaintiff was allowed to amend his complaint to seek recovery of $150 for extra work performed under the agreement. Judgment was rendered for plaintiff. We should affirm, with costs to plaintiff.

In response to public invitation by defendant, plaintiff submitted a bid for the alteration of a gymnasium in a junior high school. The bid for $164,022.00 was submitted with a letter, hereinafter referred to as the contingency letter on March 6, 1973. Plaintiff stated therein:

Due to the difficulty in determining price and availability of the three inch roof deck material specified for the Physical Education addition to Kearns Junior High School, I have submitted my proposal on the basis of a cost of 36 cents per square foot of roof deck area. I use this figure only as a basis for arriving at a total bid price, and stipulate a change in contract price, either higher or lower as the information becomes available.

The bids were opened by a representative of defendant. There was a dispute as to whether the contingency letter was removed at that time; and defendant has vigorously contended it did not have knowledge of the contents of the contingency letter, until four to six weeks later. On the same day, the bids were opened, March 6, 1973, defendant's agent, the Superintendent, recommended plaintiff's bid be accepted; an appropriate motion was made, and defendant accepted plaintiff's bid. On March 8, 1973, a memorandum of this contract was executed by the parties.

The evidence adduced at trial indicated the brand of decking designated, in the plans and specifications, viz., Weyerhaeuser Blue Star and Red Star, was not available, or being manufactured. Consequently, no accurate determination of price could be made at the time of bidding. By a letter dated May 23, 1973, plaintiff informed defendant he had procured the required decking. Plaintiff explained the cost of the decking was $6,610.98; that he had allocated only $3,008 in the bid, leaving a difference of $3,602.98.

His letter concluded:

If you need further information or have questions regarding this matter, please call or write immediately.

Defendant conceded it had knowledge of the contingency letter approximately six weeks after the bid was accepted. Defendant *Page 324 refused payment of the additional sum on the ground the written agreement had a contract price of $164,022.00.

The matter was tried to the court. Plaintiff offered the contingency letter, defendant objected; asserting the parol evidence rule. The letter was admitted, and the court granted defendant a continuing objection.

The court found the contingency letter to be with plaintiff's bid, at the time defendant's representative opened the letter; and the letter was noticed or should have been noticed in the exercise of reasonable care. It was further found the letter was part of plaintiff's bid, and became part of the contract executed on March 8, 1973. Furthermore, before the work was completed, defendant learned of the letter and the extra cost. Under such circumstances, it would have been inequitable, and have constituted an unjust enrichment if plaintiff were required to bear the cost.

On appeal, defendant contends the court erred in finding the contingency letter became part of the contract. The ground asserted is defendant's representatives were not aware of it; therefore they could not have asserted to its terms.

Restatement, Contracts, Sec. 70, provides:

One who makes a written offer which is accepted, or who manifests acceptance of the terms of a writing which he should reasonably understand to be an offer or proposed contract, is bound by the contract, though ignorant of the terms of the writing or of its proper interpretation.

Defendant fails to distinguish between mutual assent and the manifestation indicating such assent. The latter is what the law requires.1 If a misunderstanding is owing to the fault of one party, and the other party understands the transaction according to the natural meaning of the words or other acts, both parties are bound by that meaning.2

Plaintiff presented his contingency letter with his bid and proceeded to give defendant notice of the adjustment in price in a timely manner. Defendant manifested acceptance of plaintiff's offer. It cannot now negate its assent by asserting it was without knowledge of the terms of the offer — when such lack of knowledge was the product of its own negligence.

A further contention is the court erred in admitting the contingency letter. This on the ground it was barred by the parol evidence rule.

The provision in the agreement executed subsequent to the acceptance of plaintiff's bid, is cited:

The Board agrees to pay the contractor for the said work and materials and for the full performance by the Contractor of all the covenants and conditions in the manner and form herein set out for the General Contract, including Plans and Specifications, the sum of One Hundred Sixty Four Thousand Twenty Two ($164,022.) dollars subject to additions and deductions as herein provided, and subject to the provisions of this Agreement. . . .

Defendant contends this provision represents the final and complete expression of the agreement of the parties, viz., an integrated contract, the terms of which may not be added or varied by prior written agreements relating thereto.3

Whenever a litigant insists that a writing that is before the court is an integration and asks the application of the parol evidence rule, the court must determine as a question of fact whether the parties did in fact adopt a particular writing or writings as the final and complete expression of their bargain. In determining the issue of the completeness of the integration in writing, evidence extrinsic to the writing itself is admissible. Parol testimony is admissible to show the circumstances *Page 325 under which the agreement was made and the purpose for which the instrument was executed.4 [Emphasis supplied]

The court after evaluating all the evidence, concerning the transaction found the contingency letter to be part of the bid, and to have become a part of the contract.

It was a question of fact whether the agreement of March 8, 1973 was an integrated contract, viz., had the parties manifested assent not merely to its provisions, but as a final statement of the intentions concerning its substance.5 The question was found adversely to defendant. There is substantial evidence in the record to sustain the finding.

Finally, defendant assigns as error the permission given to plaintiff allowing amendment of his complaint during the trial, to recover $150 for striping a floor. This work was not included in the contract, but was requested as additional work. Defendant objected to the introduction of evidence establishing this claim on the ground there had been no discovery nor had the Board had the opportunity to look into what work was done.

The work had been set forth in plaintiff's answers to defendant's interrogatories. Plaintiff represented to the court defendant had promised to pay the sum, but had not. A letter in evidence, authorized by defendant's agent, stated there was no objection to the part of the Change Order referring to this work. The amendment was allowed on the ground the claim was not a surprise to defendant.

The relevant provisions of Rule 15(b) state:

. . . If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court shall grant a continuance, if necessary, to enable the objecting party to meet such evidence.

The action of the trial court when evaluated by the standards set forth in Rule 15(b), does not indicate an abuse of discretion.6

WILKINS, J., concurs in the views expressed in the dissenting opinion of Mr. Justice MAUGHAN.

1 See Restatement, Contracts, Sec. 20, Comment a.
2 See Restatement, Contracts, Sec. 501, Comment b.
3 See Restatement, Contracts, Sec. 237.
4 Bullfrog Marina, Inc. v. Lentz, 28 Utah 2d 261, 266,501 P.2d 266 (1972).
5 See Restatement, Contracts, Sec. 228, Comment a.
6 See General Insurance Company of America v. CarniceroDynasty Corporation, Utah, 545 P.2d 502, 506 (1976).