Egerer v. Csr West, LLC

67 P.3d 1128 (2003)


P owned a 10-acre parcel of land he planned to develop into commercial property. The property required a considerable amount of fill to make it suitable for development. P purchased fill material in 1995 when he contracted at the rate of $1.10 per cubic yard to have Wilder Construction haul to his property some material being excavated from the shoulders of Interstate 5 as a part of a highway improvement project. P still needed roughly 17,000 cubic yards of fill material. In May 1997, P learned that D had contracted with the Washington State Department of Transportation to excavate material from the shoulder areas of Interstate 5. P and D reached an agreement to have D “all” the shoulder excavations from the project to P's site at the rate of $.50 per cubic yard. D brought fill on only two nights: July 9 and 10, 1997. The Department of Transportation issued a change order that allowed D to use the excavated shoulder material in the reconstruction of the shoulder area. It was more profitable for CSR to supply the material for the State's use than to fulfill its contract with Egerer. D excavated a total of 16,750 cubic yards of material during its work on the shoulder project in 1997, and supplied virtually all of it to the Department of Transportation. P did not purchase replacement fill at the time of the breach in July 1997. P explained that it would have been too expensive, and he also did not think there was time to find replacement fill and get it onto his property before the end of the summer. In January and February 1998, he obtained price quotes for pit run ranging from $8.25 per cubic yard to $9.00 per cubic yard. These prices exceeded P's budget. In the summer of 1999, P learned of an unexpected landslide at a gravel pit not far from his property. The company agreed to sell P the unwanted slide material at a cost of $6.39 per cubic yard, including the cost of hauling and spreading. P sued D in November 2000. The court found a breach and then used the UCC to determine the measure of damages. The court determined that P was limited to 2-713. The court found that P could have obtained replacement material at the time of the breach for a cost of $8.25 per cubic yard-a price quoted to P in early 1998. The court calculated his damages for the non-delivery of fill to be $129,812.50, which was the difference between the market price of $8.25 per cubic yard and the contract price of $.50 per cubic yard.