Evergreen Amusement Corp. v. Milstead

112 A.2d 901 (1955)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

D operator of a drive-in movie theater. D entered into a contract with Milstead (P) to grade the theater lot. P agreed to supply necessary materials and perform the work needed to clear the theater site of timber, stumps and waste material, to 'grade the site as indicated on the plans' and construct a drainage ditch on the north side of the property and install two hundred feet of pipe. It then provided: 'At this contract price, no additional fill material will be substituted for unsuitable material found on the site.' When the work was actually performed some eight thousand cubic yards of dirt were hauled in the grading was still not finished as desired. The cuts and fills would not balance. It was agreed that such fill dirt as was needed to bring the site up to grade would be brought in, except at the north side, and that P would be paid for this borrowed dirt at sixty-eight cents a yard. This agreement is denied by D. D says that even if it did agree to pay for the extra dirt, there was no consideration for its agreement, because, under the contract, P was required to furnish all materials needed. In any event, the work was delayed, and D opened two months behind schedule. P sued D to recover full payment. D counterclaimed for lost profits from the delay. The trial court refused to allow D to introduce testimony for lost profits. P got the judgment, and D appealed. D claimed it lost $12,500 for the delay.