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Heinkel v. City of Corvallis

May 31, 1973

HEINKEL, RESPONDENT-CROSS-APPELLANT,
v.
CITY OF CORVALLIS, APPELLANT



Appeal from Circuit Court, Benton County. Richard Mengler, Judge. No. 25480.

Scott Fewel, Corvallis, argued the cause for appellant. With him on the brief was James Eickelberg, Corvallis.

Jack H. Cairns, Portland, argued the cause and filed the briefs for respondent-cross-appellant.

Foley, Judge. Schwab, Chief Judge, and Fort, Judge.

Foley

In December 1968, plaintiff-contractor entered into a contract with the city of Corvallis for the expansion of its Douglas Taylor Water Treatment Plant. The parties agreed that the work was to be completed by June 15, 1969, but the contract provided for extension of the completion date if the work was delayed by causes beyond the contractor's control. The contract also contained a liquidated damages provision

which provided that the contractor would be liable to the city for $300 per day for each day of non-completion (excluding Sundays and holidays).

On February 2, 1971, plaintiff filed a complaint against the city of Corvallis, alleging substantial completion of the contract on or before April 10, 1970, and demanding payment of the balance due under the contract. The complaint further alleged that the delays in completion were due to circumstances beyond plaintiff's control and therefore excused under the contract.

Defendant's answer and counterclaim contended that substantial performance did not occur until September 15, 1970, denied that plaintiff's delays in performance were excused under the contract, and demanded liquidated damages pursuant to the contract for the period from February 17, 1970, to September 15, 1970, a total of 178 days. The amount claimed by the city by way of liquidated damages exceeded the amount claimed by the contractor to be due under the contract.

The trial court found that the delays occurring through July 9, 1970, were excused pursuant to the terms of the contract, but that the delays in completion from that time forward were occasioned by acts or omissions of the plaintiff. The court further found that substantial performance did not occur until September 15, 1970, as alleged in the city's answer and counterclaim, and it therefore concluded that the city was entitled to liquidated damages for a period of 46 days between July 9 and September 15 as an offset to the amount due plaintiff under the contract. Both parties have appealed.

The city's principal assignment of error is that

the trial court erred in finding that the delays through July 9, 1970 were justified under the contract. Plaintiff's principal assignment on its cross-appeal is that there is no substantial evidence to support the award of liquidated damages from that date to September 15, 1970. With regard to both of these assignments, our inquiry is limited to whether there is any ...


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