J. B. Traylor v. Henkels & Mccoy

This is an appeal from a judgment in favor of plaintiff-respondent Traylor and against defendant-appellant Henkels & McCoy, Inc. in the amount of $103,171.14 which was entered following a jury trial and verdict. Traylor's suit sought damages for nonpayment of construction work performed by him for Henkels & McCoy and for consequential damages to his business caused by that nonpayment. Although Henkels & McCoy contested both liability and damages below, on appeal it is only contended that the damages awarded by the jury were excessive to the extent that they exceeded $39,963.22. We agree and reverse. In 1974 Traylor submitted a bid to Henkels & McCoy for the cost of digging a trench in which a gas main would be installed. That bid included the cost of backfilling and cleanup work. Henkels & McCoy accepted Traylor's bid. Traylor's bid contained a rock clause providing that the contract did not cover the cost of moving any hard rock that might be encountered in the process of excavating the trench. Such rock was in fact encountered by Traylor who then informed Henkels & McCoy. Although the parties did not then agree as to how much Traylor would be paid for removal of the rock, they did agree that Traylor would undertake that work. It was understood that an agreement would be reached at a later time as to how much Traylor would be paid, but no such agreement ever was reached.