Baldwin Contracting Co. v. Carl M. Buck Building Co.

PIERCE, J. This is an appeal from a money judgment in an action on a common count. Defendant-appellant admits the [172]work for which recovery was allowed was done at appellant’s instance and request, that it was properly done and that appellant agreed to pay for it. It contends, however, that the agreement to pay was without consideration because plaintiff-respondent was already obligated by an earlier contract to do the work without additional charge.

Appellant was the general contractor under a contract with the United States Air Force to construct a housing project at Stead Air Force Base in Nevada. Respondent was one of a number of subcontractors on this job. Its subcontract covered certain water and sewer systems. This work was completed satisfactorily and was accepted by appellant. Some appreciable time thereafter certain other subcontractors, particularly one Mendenhall with a grading subcontract, tore up and damaged the pipeline. Bud Cleland, appellant’s manager and superintendent on this job, asked respondent to do the work of repair. Respondent had performed other previous work of repair without charge, but its engineer and job superintendent, Robert Kirch, refused to perform this more extensive work unless appellant would pay for it.

The provision of the subcontract which was in dispute between the parties is section 5 thereof. It provides in part: “Subcontractor shall be responsible for any loss or damage to his work prior to the time of final acceptance as provided in the Housing Contract. Subcontractor shall carry liability insurance in companies and on forms satisfactory to Contractor to cover any loss or damage that may be caused by operations of Subcontractor under this contract . . . .” (Emphasis supplied. )

The entire housing project job had not been completed and finally accepted by the Air Force at the time the damage had occurred to the pipeline. The general contract, however, called for final acceptance of the several units (called “phases” or “mortgage areas”) separately, and although appellant’s president, Carl Buck, testified that none of the separate units had been accepted when the damage occurred, there is other testimony, by respondent’s engineer Kirch, that Cleland had informed him that the “phase” in which the damaged pipeline was located had been theretofore accepted by the Air Force.

When respondent’s representative demanded that payment be made by appellant as a condition to respondent’s performing the work of repair, Cleland got in touch with Buck, lyhq