Laurel Race Course, Inc. v. Regal Construction Company, Inc.

333 A.2d 319 (1975)

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Nature of the Case

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Facts

D engaged Watkins and Associates, Inc. (Watkins) whereby the latter agreed to design a plan for the reconstruction of the Laurel track and the installation of a complete drainage system. In June 1972, P submitted a bid proposal for the construction work. P agreed to perform 'in strict accordance with the terms and conditions of the specifications and contract documents . . . and the plans . . . and do such other work incidental thereto as [might] be ordered by the Engineer, at the unit or lump sum prices quoted in the attached 'Bid Schedule.'' P also agreed to 'substantially complete all work on or before September 1, 1972, and to finish the job by September 15, 1972.' This document and the contract itself expressly made time of the essence. P executed the usual panoply of documents which regularly attend such transactions. Among them was the 'General Conditions,' which defined Watkins's status as the 'Engineer.' Watkins had 'authority to reject work and materials which did not conform to the plans, specifications and contract documents, . . . and to decide all engineering questions . . . .' It was also charged with the duty to 'interpret the meaning and requirements' of those documents and to 'decide all disputes' that might arise thereunder. D was permitted to withhold partial payments from P if the latter failed 'to remedy defective work' and for other causes which in the opinion of the Engineer would justify D in withholding such . . . payments. Performance was neither substantially completed by September 1 nor fully completed by September 15. P received a 'punch list' of 18 items requiring its attention. P claimed in late November that it had remedied those deficiencies and therefore demanded payment in full. Watkins detailed deficiencies in the work that could have been fixed during construction but were ignored and now required D to perform a large amount of maintenance work that would not have been required had the base been properly blended and compacted. D refused to pay the sum of $110,931.91. P sued D. At trial the claim was $49,648 plus interest because D had made additional payments during the intervening period. P claimed $49,648 under the original contract and $42,657.48 on a verbal contract. At the conclusion, the court said with respect to the stones, 'I hold everybody accountable for that: the contractor, the racetrack owner and the engineers.' The court refused to recognize the presence of the stones as a deviation from contract performance. In regard to the refusal of the engineer to furnish the certificate, the court found that D had performed substantially and it allowed the entire balance claimed under the written contract $49,648. It also allowed $12,724.01 for the work which P had allegedly performed pursuant to the verbal contract. D appealed. At the trial, P persisted in its contention that D failed to produce a certificate of the engineer as a condition precedent to liability under the written contract. It repeats that argument on appeal.