dissenting:
I must disagree with the majority’s interpretation of the contract provisions involved in this appeal, which holds that section 120 of the City’s provisions conflicts with and is to take precedence over other contractual clauses.
The majority interprets section 2. of the City of Chicago provisions to require the contractor to work “two 8-hour shifts per day, 5 days per week.” The majority then applies this provision to the entire period of the construction project to plaintiff’s prejudice and notes that, with the exception of 4 days, plaintiff never complied with section 2. The thrust of the majority position would seem to recognize this situation as the basis of denying recovery to plaintiff. While defendant has strongly urged adoption of the trial court’s position, even defendant has never asserted denial of relief to plaintiff on the basis that the latter did not comply with the double-shift specification of section 2 during all times of the project.
Moreover, an examination of defendant’s work project reports contained in the record shows that plaintiff was deemed to be operating slightly behind the expected schedule throughout most of the project period. But that situation was never of such magnitude as to suggest that it was due to plaintiff’s failure to work in double shifts. Rather, these project reports tend to indicate that at the outset of the project defendant did not anticipate that plaintiff would work double shifts.
The majority also characterizes sections 2 and 120 of the City of Chicago provisions as being “drawn to apply specifically” to this project. Such position is obviously premised on defendant’s brief, which urges such interpretation and which further describes the Illinois Standard Specifications at issue herein as “boilerplate” provisions which are to be relegated to obscurity by the “tailor-made” provisions of the City of Chicago contract. It would appear that, insofar as section 120 is concerned, the defendant has incorporated a similar provision in other contracts. (See Unicon Management Corp. v. City of Chicago (7th Cir. 1968), 404 F.2d 627.) Such provision can hardly be described as having been placed in the contract specifically for this project.
The majority discerns no problem in the interpretation of the ambiguous contractual clauses herein because various other provisions of the City of Chicago contract specifically negated the effect of parallel sections of the Illinois Standard Specifications. The contract documents were lengthy and prepared by defendant, which does not contend that the terms were subject to negotiation. It would seem that plaintiff was justified in taking said documents as presented. The City could have expressly negated the potential ambiguity between articles 8.8 and 8.5A and sections 2 and 120 by redrafting the latter to explicitly negate their effect as defendant did in regard to other articles. Plaintiff should not be prejudiced by defendant’s failure to do so; and the contract should be construed most strongly against the one responsible for its preparation. (Saddler v. National Bank of Bloomington, 403 Ill. 218, 229.) “If, however, it is clear that the parties tried to make a valid contract, and the remaining doubt as to the proper interpretation is merely as to which of two possible and reasonable meanings should be adopted, the court will adopt that one which is less favorable in its legal effect to the party who chose the words.” (3 Corbin on Contracts, sec. 559, at 262 (1960).) This case presents a proper situation for application of this rule. I would therefore adhere to the distinction applied by the appellate court in effectuating articles 8.5A and 8.8. However, to butress its position, the majority selectively applies the language of section 120 requiring notification of the duration of delay to the commissioner and purchasing agent to “certain events or contingencies” not otherwise delineated. The “plain terms” of section 120, as construed by the majority, however, require that “No extension of time” will be granted unless these notification procedures are fulfilled. The majority does not convincingly set forth a rationale for its distinction in this regard. And even if the majority is correct in its interpretation, it is obvious that such reasoning demonstrates the ambiguity arising from section 120.
The majority states that “it would be unreasonable to construe the contract as giving the City the right to suspend operations at will without affording the contractors the opportunity for an extension of time to complete the work.” While the majority claims this is not the present case, it seems apparent the suspension ordered by the defendant in regard to the neighborhood opposition to the construction design clearly falls within this description of forbidden activity by defendant. Moreover, the “clear, certain and unambiguous terms” of section 120, as interpreted by the majority, would hardly seem susceptible to such construction; and this interpretation would potentially conflict with the majority’s later statement that “It is not a proper function of the courts to alter the agreement of the parties by interpreting a contract to reach what might seem to be a more appropriate or equitable result under the circumstances as they have developed.” Moreover, this resolution would place every contract in doubt if the courts are to determine in each instance whether defendant acted properly in suspending operations, thereby tending to negate the salutary benefits of public bidding.
The majority accepts the uncompromising approach of defendant in regard to the labor strike. The majority dismisses the evidence of the impossibility of working double shifts because of a manpower shortage. As heretofore noted, the majority has discounted this evidence by noting that plaintiff could have worked double shifts throughout other periods of the project and thereby presumably completed the project within the specified time. My views pertaining to this position need not be reiterated at this point. I further find that a letter from defendant’s Commissioner of Public Works to defendant’s purchasing agent is supportive of plaintiff’s position. There the commissioner recited the facts surrounding the construction strike at issue here, and he concluded that it halted all road construction in a 14-county area. This strike resulted in a loss of skilled workers to areas outside the sphere of the strike. The commissioner observed that, after the strike had terminated, contractors had great difficulty in rebuilding work crews. The commissioner recommended that the project completion dates be reset to take into consideration the actual strike delay with an additional seven days as a minimal time needed to rebuild work crews. This letter certainly does not weaken plaintiff’s position that working a double shift after the strike was virtually impossible.
- Finally, the majority faults plaintiff because of the dilution of competitive bidding if relief is granted. It seems the majority is concerned with what have been called “cost overruns” caused, in part, by deliberate underbidding on public contracts. The damages here sought amount to no more than 3% of the total project cost. There is no indication of any bad faith on plaintiff’s part.
The appellate court, which the majority reverses, construed the contract to give effect to each of the contract provisions pertinent to this case. That court reasoned that a credible distinction existed between the delay resulting from orders of defendant under section 120 of the City of Chicago provisions and orders by defendant directly suspending work as described in article 8.8 of the Illinois Standard Specifications. Under the circumstances of this case, the appellate court held that a direct governmental work suspension, as defined by article 8.5A, should be treated under article 8.8 and not section 120, thereby entitling plaintiff to performance extensions caused by defendant’s suspension order. The appellate court expressed a similar view in holding that article 8.5A pertained to the labor strike in this case.
I find the reasoning of the appellate court regarding the interrelationship of the aforesaid contract provisions to be correct. For these reasons I dissent from the majority’s result; and I would affirm the appellate court insofar as that court awarded partial judgment to plaintiff.