Ducolon Mechanical, Inc. v. Shinstine/Forness, Inc

893 P.2d 1127 (1995)

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Nature of the Case

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Facts

Shinstine (D) was a general contractor that hired Ducolon (P) as a sub to do plumbing, heating, ventilation and air conditioning. D informed P that its bid was substantially lower than other bids and that it should review its bid. P did so and informed D that his bid was correct. D advised P of the low bid for a second time and P without checking his numbers increased his bid by 10%. P began work and was soon behind schedule and was eventually terminated for defective work and being behind schedule. P was replaced, and the work was completed for $16,268 half of which was attributed to completing of P's work and the other half to fixing P's defective work. P filed a materialman's lien and D counterclaimed. During trial, D argued that P could not recover an amount in excess of the $127,377. P argued that it was entitled to recover its actual cost of performance alleged to be $180,033 less progress payments of $89,746 made by D. The court ruled that D terminated the contract and also found that P materially breached the contract by delaying completion of the project for 30 days. The trial court awarded D $3,136.66 instead of the $90,326 requested. D and P appealed.