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August 25, 1995


Appeal from Mobile Circuit Court. (CV-93-2495). Robert E.L. Key, TRIAL JUDGE.

Released For Publication February 20, 1996.

Yates, Judge, Robertson, P.j., and Thigpen, Monroe, and Crawley, JJ., concur.

The opinion of the court was delivered by: Yates

YATES, Judge

Sunbelt Safety & Barricade, Inc., sued Harbert International, Inc., and its surety, United States Fidelity and Guaranty Company, alleging breach of contract and seeking compensation for work and labor done. Harbert answered and filed a motion to interplead several parties that sought retainage money held by Harbert pursuant to the original subcontract between Harbert and Sunbelt. The trial court granted Harbert's motion, but, for purposes of this appeal, neither the interpleaded parties nor the issues they raised through various pleadings are relevant.

After an ore tenus hearing, the trial court entered a $21,875.26 judgment, with "interest allowed by law plus costs," in favor of Sunbelt, under the theory of quantum meruit, for work and labor done. The trial court denied Harbert's post-trial motion; Harbert appeals. Harbert's only contention on appeal is that the trial court erred in calculating the amount of quantum meruit damages.

In January 1991, Sunbelt entered into a subcontract with Harbert to provide traffic control devices on a highway project that Harbert had contracted to perform for the State Highway Department. The original subcontract provided that Sunbelt would furnish to Harbert 100 safety cones at $119.05 per cone and 100 cone weights at $95.24 per weight. In April 1991, Harbert ordered 50 additional cones and weights for the same unit price, pursuant to a valid, written change order that modified the original subcontract. In a letter dated May 1991, Harbert's construction manager instructed Norman Hill, Sunbelt's president, to refrain from bringing additional cones and weights to the jobsite unless he received specific written instructions from Harbert. These instructions were consistent with the requirements in the subcontract for written modification of its terms. *fn1

In October 1991, representatives from Harbert, Sunbelt, and the Highway Department met to discuss, among other things, whether additional cones and weights were needed on the project. Steve Watkins, the project engineer for the Highway Department, testified that John White, the project manager for Harbert, wanted to add additional cones to increase the length of the lane closures; *fn2 that he had told White that he would consult with the division office of the Highway Department to obtain approval for the additional cones; and that he subsequently obtained approval for the use of approximately 225 additional cones for the month of November.

Watkins further testified that approximately one week after the October meeting, White came to him and told him that Harbert did not want the additional cones; that Harbert would not pay Sunbelt for them; and that, therefore, the Highway Department should not compensate Harbert for cones that Harbert did not order from Sunbelt.

Hill testified that, even though the subcontract required that all contract changes be in writing, Sunbelt would act upon oral orders from Harbert before receiving written orders, and that this was in keeping with the informal procedure the two companies used in their dealings with each other. He also testified that on the same day that he met with White and Watkins, he ordered additional cones from his supplier even though Watkins had not, at that time, obtained approval for additional cones from the Highway Department.

Hill further testified that Sunbelt's supervisor, Albert Womack, would not begin work until he had received instructions from Harbert's supervisor, and that throughout the month of November Harbert never told Sunbelt to stop using the additional cones. Womack gave similar testimony and stated that Sunbelt used the additional cones for about one month. In December 1991, Hill began receiving letters from White indicating Harbert's unwillingness to pay for the additional cones.

Sunbelt sought $48,215.25 in damages for work and labor done. The trial court awarded less than half that amount, and determined that the cones and weights were used for only one month. Nothing in the trial court's order indicates the factors that it considered in awarding $21,875.26 in damages. *fn3 Harbert argues that the trial court, in determining the reasonable value of the work and labor done, should have considered: (1) the amount that Sunbelt paid to its supplier for the additional cones -- $3,154.50 for 225 cones and weights; or (2) the amount that the Highway Department paid Harbert -- $4,027.50 for 225 cones and weights; or (3) the original subcontract price of $119.05 per cone and $95.24 per cone weight, to determine the reasonable value of Sunbelt's work and labor done. Hill testified that this subcontract price was based upon his labor, fuel, equipment, and replacement costs amortized over approximately 300 to 400 working days. We find Harbert's suggestions as to the reasonable value of Sunbelt's services to have merit.

"In an action for work and labor, the measure of recovery is the reasonable value of such work and labor performed.... It is the duty of the court hearing the testimony ore tenus to resolve the conflict and render a judgment accordingly. Having reached and entered such judgment, it is supported by a presumption of correctness upon appeal. Such presumption may be overcome only by a showing of absence of support in the ...

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