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Procedural Posture


Plaintiff contractor appealed from a judgment of the Superior Court of Orange County, California, which granted defendant public agency’s motion for nonsuit at the conclusion of the contractor’s case. The contractor argued that the contract delay damage clause relied upon by the trial court in granting the motion did not preclude the contractor’s action seeking damages resulting from the public agency’s unreasonable delay.

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A contractor had a contract with a public agency to build a new sewer line, but it was notified by the agency not to install manholes because it had changed specifications. The contractor completed excavation and laid the pipe but was denied permission to backfill by the agency. The trench stood open for an unreasonably long time and eventually caved in due to gradual weakening of the banks. The contractor sought to recover his expenses in repairing the damage caused by the cave-in. The contract’s delay damages clause provided that if the contractor suffered any delay due to the agency’s failure to supply plans, he was entitled to an extension of time but not damages. The court held that whether the delay damages clause was intended by the parties to cover the situation where the contractor incurred extra expenses caused by a combination of change of specifications and unreasonable delay in refusing to allow backfilling was a factual question requiring the weighing of all the facts presented.


The court reversed the trial court’s judgment of nonsuit in favor of the public agency, as the cause should have been allowed to proceed to a judgment on the merits.