(dissenting):
I dissent. I believe that the trial court erred in awarding judgment to defendant through a misinterpretation of the answers made by the jury to interrogatories in the special verdict.
In summary, the jury found that the January 11, 1979 written contract (which did not contain an express promise that Triax would timely deliver materials to the island) was not the entire agreement between the parties; that the parties orally agreed, in addition, that Co-Ax would perform its labor in five months as indicated by Triax to the Navy; and that the performance by Co-Ax was “prevented or substantially hindered” by the conduct of Triax in the delivery of materials and equipment. However, the jurors were divided four to four as to whether Triax made a “promise or guarantee” that sufficient materials would be provided at the job site to enable Co-Ax to perform within the five-month period.
The trial court interpreted the jury’s failure to find a promise or guarantee by Triax to mean that there was no promise or guarantee made by Triax to timely deliver materials. Thus there was no breach of contract, and Co-Ax, having been paid its labor up-to-date, suffered no damage. The trial court placed great emphasis on the fact that the two parties had contracted before on work on special government projects at remote places and both realized that since the delivery of materials was largely in the hands of shippers over whom they had no control, Triax would not assume the responsibility for the timely delivery of materials which would allow Co-Ax to finish its work before or by the expiration of five months.
I believe that there is a more reasonable interpretation of the jury’s answers to the interrogatories which leads me to conclude that judgment should have been entered for Co-Ax.
First, if, as the trial judge reasoned, the parties were well-aware and could reasonably foresee that there might be delays in the delivery of materials to the island, this contingency certainly would have been provided for expressly in the written contract prepared by Triax and signed by the parties. Instead, the contract was entirely silent as to this matter. While the jury was unable to find that Triax made a promise or guarantee that there would be timely delivery of materials, that failure to so find is inconsequential. An express promise by Triax was unnecessary; such a promise is implied in construction contracts. See Guerini Stone Co. v. P.J. Carlin Constr. Co., 248 U.S. 334, 340, 39 S.Ct. 102, 104, 63 L.Ed. 275, 283 (1919); Walsh v. United States, 102 F.Supp. 589, 591, 121 Ct.Cl. 546, 554-55 (1952). Triax did not negate this implied promise in the written contract it prepared nor in any subsequent oral agreement.
Second, it seems highly unreasonable to me that Co-Ax would agree to provide laborers at a far-distant point to do certain work for a fixed price within a five-month period without assurance that it would not suffer delays due to lack of materials. Undoubtedly, Co-Ax intended to make a profit on the contract. Every day that its laborers sit idle, its profit is diminished. Were Co-Ax being paid for its labor by the day or the hour, the case might be different. But when a labor contract is for a fixed amount, it is most important that the work progress according to a schedule so that the cost of labor does not consume any expected profit and, indeed, even exceed the contract price. The difficulty with the trial court’s interpretation is that it, in effect, concludes that Co-Ax was willing to take its laborers to the island in the hope that materials would always be available but, if they were not, Co-Ax could leave the job and simply be paid for that part of the construction which it had completed. I cannot agree with this interpretation that Co-Ax simply took its chances. This is contrary to any knowledge and experience I have about the construction industry.
I would reverse the judgment and remand the case to the trial court to enter judgment for Co-Ax.
*390HALL, C.J., concurs in the dissenting opinion of HOWE, Associate C.J.