Iannuccillo v. Material Sand And Stone Corp.

713 A.2d 1234 (1998)

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Nature of the Case

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Facts

P entered into a written contract with D for D to excavate the 127,000-square-foot lot from its then-existing sloped state to 'grade from curb line elevation to an elevation 2 feet higher at the rear of the property.' Pezza (D) was an excavation and on-site-preparation contractor. The written contract was entered into between Material (D) (Robert Pezza's (D) signature appears on the writing) and the parties agreed that Pezza (D) would actually perform the excavation. It was estimated that said excavation would entail the removal of approximately fifty to sixty thousand cubic yards of gravel and 'existing rock now exposed.' Pezza (D) was to deliver ten thousand cubic yards to another site owned by P, with the remainder of the excavated stone delivered to Material (D), which would process it and sell it. The fair market value for gravel was $1 per cubic yard. The deal was simple. P's expectation under the contract was that he would end up with a lot that would be suitable to build and D would benefit from the proceeds realized from the processing and sale of the gravel -- expected to amount to approximately forty to fifty-thousand cubic yards. The parties agreed that 'the cost of blasting would be shared at a price of $ 5,000 each'; this was to have been the only money to change hands under the terms of the written contract. P had no engineering plans for the excavation. But intended to leave a '20-foot buffer' along the boundary bordering the residential development (eastern boundary). D testified that P never instructed him specifically about a buffer. Residents along the eastern boundary complained to the town, who in turn intervened, claiming that the excavation was illegal. Pezza (D) was allowed to continue the excavation in reliance on P's promise to provide the town with an appropriate plan documenting P's intended result. P failed to deliver a plan and the town shut the project down. The town also installed a 500-foot fence along the eastern boundary of the property. The town billed P $ 6,920 for the cost of the fence. Pezza (D) had brought in a blasting contractor to break up some of the larger exposed boulders. From blasting, approximately 10,000 cubic yards of ledge were discovered. The ledge was located in both the flat area of the site and the embankment or slope area. P instructed Pezza (D) to work around the newly exposed ledge but failed to forward his half of the accrued blasting costs. P then claimed that D was obligated to remove the ledge as part of their contract. Pezza (D) stopped work and P refused to negotiate. P sued Ds claiming a breach of contract. Ds counterclaimed, seeking damages for P's failure to pay his half of the blasting costs. In 1993, P hired R. DiCenzo Trucking to blast the ledge, excavate it, and complete the site development. DiCenzo charged $80,000 of which DiCenzo paid $32,000 for blasting. The trial justice found that the ledge was not contemplated when the parties originally bargained. It held that the cost of blasting and removing the ledge had to be borne by P. It found that Pezza (D) had breached the contract and awarded P $48,000 (plus interest in the amount of $ 56,053.47, for a total of $ 104,053.47), the cost incurred by P to have DiCenzo complete the job less the cost of blasting the ledge. The trial justice awarded Pezza (D) $2,802 on its counterclaim. Ds appealed claiming impossibility or impracticability excused their performance.