Appeal from the Court of Common Pleas of Baltimore City; Harlan, J.
Henderson, Hammond, Prescott, Horney and Marbury, JJ. Horney, J., delivered the opinion of the Court.
This appeal requires an interpretation of the meaning of some of the terms and provisions embodied in a road-building contract by and between the Rea Construction Company (Rea or contractor), the plaintiff-appellant, and the State Roads Commission of Maryland (S. R. C. or commission), the defendant-appellee.
On February 16, 1956, the S. R. C. awarded a contract to Rea for the reconstruction and modification of approximately 2.67 miles of highway in Montgomery County known as the Viers Mill Road. The contract price was estimated at $1,387,142.03, but payment for concrete used was based on specified unit prices for square yards of pavement nine inches in depth at each side and in the center of each poured strip (or other preestablished limits) of concrete surfacing. And, although the contract specified a thickness of nine inches, it was further provided that the commission could allow a tolerance of not more than one-quarter of an inch from the required thickness without imposing a penalty for a deficiency.
The contractor contends that from the very beginning of the work, it was required to pour concrete of a greater thickness than nine inches because the engineers and inspectors of the S. R. C. refused to agree that the awarded contract called for paving of an "average" thickness of nine inches and insisted that the "minimum" thickness should be nine inches. The claim is that this interpretation of the contract by the commission personnel resulted in the pouring of a concrete pavement of an average thickness of 9.565 inches -- an average of 0.565 inches for the 2.67 miles paved -- that aggregated 1780.11 cubic yards of concrete not required under the terms of the contract, and that the value of such excess concrete, for which the State refused to pay, was $33,038.84.
On the other hand, the S. R. C., besides denying that it had done anything unusual in requiring a minimum of nine inches in conformity with the specifications, or that it had demanded a greater thickness than that called for by the contract, contends that the overage, which it claims was only 0.320 inches on 87,109 square yards of main line paving, was the result
of the breakdown of the grader-log and other equipment of the contractor, and that it was customary for contractors to pour an overage of concrete in this type of construction. In addition to this, the S. R. C. points out that Rea did not give the commission written notice of its intention to claim extra compensation, and insists that, as an agency of the State, it is immune from suit.
The trial court, sitting without a jury, found as a fact that at no time did the commission or anyone require more than the nine inch depth specified in the contract. In weighing the conflicting evidence as to what caused the generous pouring of concrete, the court came to the conclusion that the average depth of the paving was not "too much out of line" with the thickness of other paving previously done by Rea and other road contractors and decided that the plaintiff had not met the burden of proving that the pouring of concrete in excess of the required standard was the fault of the defendant. Finally, because the contractor had not given notice (before the work was commenced) of an intention to claim extra compensation, the court further found that the contractor had waived its claim, and entered a judgment for the S. R. C. We think the court was not in error in so doing.
It may be that the S. R. C. was immune from suit under the circumstances, but, for the purposes of this case, we shall assume that it was not and decide the controversy on its merits.
As previously stated the specifications incorporated in the contract between the parties provided that the concrete to be poured should be "nine (9) inches in depth at the sides and nine (9) inches in depth at the center." Section 3.47-33 (construction methods) of the specifications, concerning "tolerance in pavement thickness," provides:
"(a) After the pavement is placed and before final acceptance the thickness as determined by measuring cores cut from the pavement or direct measurements of the edge thickness shall not be deficient more ...