Washtenaw Asphalt Co. v. State

Targonski, J.

This is an appeal from a judgment entered in the Court of Claims in favor of the plaintiff in the amount of $830.38, being precisely the amount conceded by the defendant as owing to the plaintiff. Plaintiff had initiated suit for the amount of $6,898.58. Plaintiff appeals from the findings of the trial court.

There is little in the way of fact issue in these proceedings. One Don Drew was designated in the contract as the State Inspector to point out to the contractor the areas to be paved in accordance with the contract entered into between the parties. This is vitally important since no plans were furnished to the contractor and the contract specifically provided " * * * The roads requiring work wdll be pointed out by the inspector * * * ”. The only testimony offered as to the work to be performed was that of the State Inspector Drew and a *134Mr. Banker who testified as supervisor on the project for the plaintiff contractor. They are in accord in their testimony that, if there was any deletion to be made from the paving project because of inability to complete the work within the framework of the contract, it would be the gravel roads known as fire lanes and the gravel portion in the vicinity of "K” area or buildings. However, no testimony was offered which would help determine the value of such work which might be excluded if the terms of the contract were insufficient to encompass all of the work pointed out by Mr. Drew.

The parties executed a contract on June 3, 1969, under the terms of which the plaintiff was to construct a bituminous surfaced road over existing gravel and resurface existing bituminous road with sheet asphalt overlay on the grounds of Ypsilanti State Hospital in Ypsilanti, Michigan. The parties agree that bidding on the contract was on the basis of estimated quantity of material needed. The estimates were provided by the state, and the bidder inserted the unit price. The base proposal sum was determined from the estimates and unit prices and in this case was $16,607.70. The unit price was the governing term.

The plaintiff surfaced the areas pointed out by Mr. Drew in accordance with the provisions of the contract with the result that the total cost of the project amounted to $23,506.28. The plaintiff then instituted action for the balance of $6,898.58 after the state had made a payment of $16,607.70. The state admitted liability in the amount of $830.38 but denied liability as to the balance.

We have carefully read the transcript in the Court of Claims proceedings and examined the contract with great care, since the outcome hinges *135here not on the finding of fact but rather on interpretation of the language of the contract as applied to the facts, on which there seems to be little dispute other than the question of the amount owing and the work contemplated. For this purpose it is important to bear in mind that the contract was drawn by the defendant State of Michigan. It is well established that in case of doubt or ambiguity in the terms of a contract, the language will be construed against the party who drafted the instrument. Elby v Livernois Engineering, 37 Mich App 252 (1971); Keller v Paulos Land Co, 5 Mich App 246 (1966), aff’d 381 Mich 355 (1968); Seaboard Surety Co v Bachinger, 313 Mich 174 (1945); Michigan Chandelier Co v Morse, 297 Mich 41 (1941).

The state contends that their Mr. Drew had no training or experience in road construction or resurfacing and that he was only monitoring the thickness of the material installed. They cannot escape the responsibility of their language which says that thé work required will be pointed out by the inspector, which language appears on page 1 of their contract. The state maintains that it was the responsibility of the contractor to keep a running account of the quantities as appears on page 4 of the contract under the heading "quantities”. However, again they cannot escape the responsibility of their language in Item 3 on page 3 of the contract wherein it is stated "Delivery tickets shall be furnished showing net weight in pounds of each load of bituminous material delivered and installed. Delivery tickets shall be initialed by the driver and the inspector. The inspector shall retain one copy of each delivery ticket for transmittal to the state building division upon completion of the project”. It is true that under the uncontro*136verted testimony the contractor maintained such record of deliveries by weight as required by Item 3, page 3, of the contract. The fact that the inspector failed to retain one copy of each delivery ticket for transmittal to the state building division was not the responsibility of the plaintiff. It is conceded, and no testimony is offered in contravention, that it was impossible to determine in square yardage the amount of material furnished from the delivery tickets showing net weight in pounds of each load. However, that is the only type of record which the contract required the plaintiff to maintain.

Further, on page 3 the basis of payment is spelled out in the following language: "Payment for all work will be on the basis of the contract unit prices applied to the actual quantities installed.” Also, on page 1 of the contract the state sets forth the following:

"Quantities as listed have been carefully estimated but are not guaranteed. The state reserves the right to increase or decrease the quantity of work to be performed at the unit prices by amounts up to 25 per cent of the quantities stated.”

Another indication of the intent of the parties is the provision on page 1 in an earlier part of the contract as follows:

"The Base Proposal Sum in [sic] solicited and the amount is to be inserted by the bidder in the blank space provided above for the performance of the work described herein. It is to be computed on the basis of the unit prices, inserted by the bidder, applied to the estimated quantities stated. In case of variation between the unit price and the extension, the unit price will govern. Award of contract, if made, will be to the bidder whose base proposal sum is to the best interest of the state.”

*137From an examination of the record, the briefs, and the contract, there is no question that the parties are in agreement that the bidding on the contract was on the basis of estimated quantity of material needed. The estimates were provided by the state, and the bidder inserted the unit price. The base proposal sum was determined from the estimates and unit prices and in this case was $16,607.70. The unit price was the governing term. No plans or blueprints accompanied the proposal since, according to the contract, the areas to be paved were to be pointed out to the bidder by the defendant’s inspector, Don Drew, plant superintendent at the hospital. Nowhere in the contract do we find any language limiting the amount of resurfacing to be done to any fixed dollar budget or any fixed area other than that "pointed out [to the bidder] by the [defendant’s] inspector”. This is not a situation where we are asked to set aside findings of fact by the trial court where GCR 1963, 517.1 would apply with the end result that we would only set aside süch findings when they are clearly erroneous. This is true since this rule in general applies in the Court of Claims. MCLA 600.6422; MSA 27A.6422. This is rather the interpretation of the legal significance of the terms of the contract as drafted by the defendant and accepted by the plaintiff.

The only testimony presented as to an exclusion from the work contemplated was as to the gravel fire lanes and the roads in the area of the K Building. We are unable to determine the value of this deletion since no testimony appears to have been taken as to the value of such work based on unit price considerations. Accordingly, this matter is remanded to the Court of Claims for proofs as to the value of this work and entry of a judgment for *138the amount of the plaintiffs claim of $6,898.58 reduced by the value of the work in the areas described in this paragraph.

Reversed and remanded.

T. M. Burns, J., concurred.