J. F. Edwards Construction Company v. State of Illinois

COMPENSATION

10.9 METHOD MEASUREMENT. (As modified by special provisions at page 2 thereof.) (b) Tree Removal. (1) Inch Diameter. Trees to be removed as a payment item but not measured in acres shall be measured per inch of diameter. The diameter shall be measured at a point two feet above the highest ground level at the tree, and will be determined by dividing the measured circumference of the tree by 3.1416. The accumulated total inches of diameter shall be the pay quantity. The point of measurement shall be two feet above the ground surface, as defined elsewhere herein, even though the trees are to be cut flush with the ground. . . .

The evidence in this case clearly indicates that Mr.

Burnham, the District Construction Engineer for District 4, considers that claimant did not fully comply with the terms of the contract with respect to the cutting of the trees flush with the ground. Respondent’s evidence indicates that there were approximately eightyfive stumps, which were not cut flush with the ground, and, therefore, did not comply with the terms of the [*86] contract. Claimant has presented conflicting testimony that the eighty-five stumps in question had been previously approved as cut, and, further, that no written list of the eighty-five stumps specifically designating their location was ever given to claimant.

While there is conflicting testimony concerning the eighty-five stumps, which respondent alleges were not cut in conformity with the terms and requirements of the contract, it is the opinion of this Court that claimant has failed to prove by a preponderance of the evidence that it has fully and completely complied with the requirements of the contract that a 1 the trees be cut flush with the ground.

Claimant’s second claim for $5,400.00 additional compensation is based on the measurement of the diameter of the trees cut on a plane having the same slant as the cutting plane rather than on a level plane. Claimant bases its claim on its interpretation of Article 10.9(b) (1) of the Standard Specifications, as modified by special provisions. This Article provides that the point of measurement shall be two feet above the ground surface, as defined elsewhere herein, even though the trees are to be cut flush with the ground. The Specifications provide in Article 10.4 that the term “ground level” shall be defined as being “flush with the ground”. It is the opinion of this Court that there is no justification in the record for claimant’s interpretation of Section 10.9 of the Standard Specifications, as modified, that the measurement of the diameter of trees cut should be on a plane having the same slant as the cutting plane rather than measurement on a level plane. It is also to be noted that claimant accepted periodic payments under the contract based on measurement of trees cut on a level plane.

[*87] Claimant’s third claim is for compensation for additional man hours of labor and for use of equipment required to backtrack to recut stumps. It is the opinion of this Court that the alleged additional work performed by claimant for respondent was originally contemplated in the contract. It was the duty of claimant to recut the stumps in conformance with the specifications and special provisions of the contract. While the recutting of stumps may have been more work than claimant expected, it appears that such additional work was within the terms of the contract.

We, therefore, hold that claimant is not entitled to recover for the above and foregoing reasons. The claim is denied.