Catamount Construction, Inc. v. Town of Milford

Bois, J.,

dissenting: I disagree with the majority’s conclusion that “no portion of the contract . . . can reasonably be interpreted as supporting the town’s position,” and, therefore, would reach a different result.

Section 02850 of the contract, entitled “Work on Railroad Property”, reads in pertinent part:

“PART 1-SCOPE
1.01 The Contractor shall furnish all materials, labor, tools and equipment necessary to install the sewer pipe under the railway tracks and construct the rubber track crossing at the location shown on the Drawings.”

As noted by the majority, there is no doubt that “the contract, *785therefore, required the plaintiff to furnish all materials, labor, tools and equipment necessary to install the sewer pipe under the railroad tracks and construct the rubber track’ railroad crossing.” (Emphasis supplied.)

“1.03 All requirements of the Railroad shall be strictly adhered to and if there be any conflict between these specifications and the requirements of the Railroad, the requirements of the Railroad shall apply.
PART 2-GENERAL RAILROAD REQUIREMENTS
2.04 The Railroad may require flagging or inspection personnel and prior to start of any work at Railroad, the Contractor shall submit a deposit in the amount required by the Railroad.”

The contract contained further provisions for “stated allowances.” Section 00231 contains the following language:

“GC-34. STATED ALLOWANCES
The Contractor shall include in his proposal any cash allowances stated in the Supplementary Conditions.”

The trial court found that:

“Clearly, from the testimony, and from the language of Section GC-34 itself, a stated allowance represents an amount of money allowed by the contractor for an item in the contract over which the owner [i.e. the Town of Milford] will have a final choice. If the owner ultimately selects an item which costs more than what the contractor ‘allowed,’ the owner is then required to pay the difference; similarly, if the owner selects an item which costs less than that ‘allowed,’ the owner is credited with that difference....
The contention relied on by the plaintiff that this expense is reimbursable as an ‘allowance’ would necessarily suggest that the defendant Town of Milford has an opportunity to select either a more expensive or less expensive crossing than that allowed for by the contract.”

This, of course, would be in direct contravention of Part 1 — Scope 1.03 which designates the railroad as the ultimate controlling authority for work performed on its property.

*786Section 01020 “STATED ALLOWANCES” in pertinent part provides:

“PART 1 GENERAL
1.01 Stated allowances shall be as follows:
ITEM ALLOWANCE DOLLARS
H. Railroad Personnel Expenses $3,200.00
1. Stated allowance for railroad work shall be for personnel, inspection and other items of expense billed to the Contractor by the railroads in the normal course of constructing the work on or under railroad property, but will not be used to reimburse the Contractor for expenses incurred by his own carelessness or by unauthorized work.”

The majority rejects the town’s contention that the “STATED ALLOWANCES” section of the contract only contemplated expenses for railroad inspectors and railroad flagmen. The majority quotes and emphasizes, Part 1.01 H. and 1 of the “STATED ALLOWANCES” portion of the contract, which provides that “Railroad Personnel Expenses” (emphasis added) shall be in the amount of $3,200 and that “[s]tated allowance for railroad work shall be for personnel, inspection and other items of expense billed to the Contractor by thé railroads in the normal course of constructing the work on or under railroad property. . . .” They choose to ignore the further explanation of the expenditures contained in section 00141 of the contract which provides in pertinent part:

“Plus the actual cost of stated allowances listed hereinafter for which prices are estimated for the purpose of bid comparison and for which payment will be in accordance with Section 34 of the General Conditions.
F. Railroad crossing
Cost to be paid to Railroad Company for issuing permits and usage of railroad personnel {$3,200.00)
(Emphasis added.)”

Their reliance on section 4.02 under Part 4 “Measurement and Payment,” in my opinion, is misplaced because this section again deals only with stated allowances.

*787The majority concludes that the phrase “other items of expense” embraces the entire cost of constructing the crossing. They cannot and do not explain away the responsibility of the contractor to furnish all materials, labor, tools and equipment imposed by the terms of the contract, nor can they find such clear and concise language but in Part 1 — Scope 1.01.

Accordingly, I conclude, as did the trial court, that the contract language is clear and unambiguous, and that the parties contemplated the inclusion of the cost of constructing the crossing and that “[s]uch a strained and tortured interpretation” as proposed by the plaintiff “has no basis under the terms of this contract.”

I further wholeheartedly agree with the lower court, which stated:

“This [c]ourt is not at liberty to revise, modify o[r] distort an agreement under the guise of professing to construe it, and it has no right to make a different contract from that actually entered into by the parties. Neither is this [c]ourt in a position to compensate for the indiscretions of a party to this contract, and thus cannot make for the parties a better or more equitable agreement than they themselves have been satisfied to enter into.”

See Mills v. Nashua Federal Savings and Loan Ass’n, 121 N.H. 722, 433 A.2d 1312 (1981).