149.) Plaintiff has charged only for the portions of the work completed while it was the general contractor and paid out by it, namely $ 643.90. (Tr. 149; 380-384.) The argument that the type of fire alarm system called for by the contract with defendant and installed by the subcontractor was more expensive than another system which might have been permitted under the District of Columbia Code is irrelevant. (Tr. 64-67; 211-212; 262-264.)
8. Plaintiff seeks to recover an amount for 'Overhead' -- namely, 10% Of the amounts expended for labor, materials, insurance, and subcontracts. However, the proposal of June 2, 1961 (plaintiff's exhibit 4), which became the contract when accepted by defendant, contains no specific provision for overhead. The absence of any provision for overhead as such in the June 2 contract is partly explained by reference to a proposed contract (which was rejected by defendant) dated May 12, 1961. (Defendant's exhibit 1.) In the first place, the proposal of May 12, submitted by Mr. Burgoldt, contained a provision for overhead in the amount of 5% On certain items, and while the entire proposal was not acceptable to either Mr. Smither or Mr. Hannan, there was no specific objection to the figure of 5%. (Tr. 40-45; 295.) Some explanation of an increase in the amount of 10% Would therefore be required before the Court would conclude that any such provision was included, sub silentio, in the agreement eventually reached by the parties, but plaintiff has offered no such explanation. This unexplained difference in the percentages is made even more important by the fact that in early May, defendant's president signed a written authorization ot Mr. Burgoldt 'to draw up a contract for approx. $ 100,000.00 at 5% 10%.' (Emphasis added.) (Plaintiff's exhibit 3; Tr. 11-12.) In addition to this difference in the percentages, further comparison of the documents of May 12 and June 2 reveals that for eleven separate items the 'projected' totals in the May 12 proposal and the totals in the June 2 contract are identical (ignoring differences of less than one dollar): Demolition & Preparation, Plumbing, Electric, Terrazzo, Painting, Entrance Doors, Boiler Conversion, Plans, Insurance, Supervision, and Permits. Yet in the May 12 proposal, nine of these items were computed without adding 5% For overhead, while only two items -- Demolition & Preparation, and Painting -- contained such an allowance for overhead. Thus plaintiff's present claim for overhead on all items would increase the totals on an item-by-item basis even above the totals of the proposal which defendant rejected as too high. In this state of the evidence, the Court attaches no significance to the fact that defendant did not protest the inclusion of a charge of 10% For overhead on four of plaintiff's requisitions, dated July 10, August 2, September 18, and October 16, 1961 (plaintiff's exhibits 11c, 11d, 11e, and 11f). The Court therefore concludes that plaintiff has failed to prove by a fair preponderance of the evidence that there was any agreement between the parties that plaintiff should be paid anything for overhead, and no such provision will be implied by the Court.
9. Plaintiff seeks to recover an amount for 'Profits' -- namely, 10% Of the amounts expended for labor, materials, insurance, and subcontracts. Here, unlike the facts surrounding the treatment of overhead, there was no variation in the percentage in the course of negotiations. From the first authorization for a contract (plaintiff's exhibit 3), through the rejected proposal of May 12 (defendant's exhibit 1), and through each of plaintiff's requisitions (plaintiff's exhibits 11b, 11c, 11d, 11e, 11f) except the first, which simply ignored profits altogether and which pre-dates the June 2 proposal (plaintiff's exhibit 11b -- dated May 24, 1961), the figure for profits was consistently set forth as 10%. Nor is the absence of specific allowance for profits in the June 2 proposal significant in view of the history of the negotiations. Defendant objected to the proposal of May 12 primarily because it was worded in a way which implied that the total contract figure of $ 83,970.32 was simply a 'projection' which could be exceeded. (Tr. 295.) By contrast, in the June 2 proposal, the 'Grand Total cost' of $ 84,034.00 was described as 'a firm figure based on the above specified work.' The proposal further described the contract as 'a Time and Material Contract' in which 'any savings affected shall reflect as a credit and deducted from the amount $ 84,034.00.' Thus the proposed total cost of $ 84,034.00 was not to be exceeded except by special authorization for specific items. (Tr. 45-46.) However, within this estimated total cost, and within the estimated figure for each item in the breakdown by type of work (e.g., Demolition & Preparation, $ 4,192.00; Masonry, $ 7,824.00, etc.), allowance for profits would not be inconsistent with defendant's insistence upon a figure that would be a ceiling on costs. Indeed, allowance of 10% Profit would be consistent with what the construction trade understands to be included in a 'time and material' contract. (Tr. 135-137.) In view of the understanding of the trade and in view of the prior negotiations between the parties, the Court has concluded that a provision for 10% Profits was agreed to by the parties when they called this a 'time and material' contract -- provided that the total cost did not exceed the $ 84,034.00 ceiling. Allowance of profits in the amount of 10% Brings the total cost to an amount far below this ceiling. The Court will allow profits to be charged against the total of labor, materials, and subcontracts. However, the Court will disallow profits on insurance, plans, and permits, which items on the contract of June 2 are clearly set apart from the breakdown by type of work (plaintiff's exhibit 4), and which on the proposal of May 12 were identical in amount but had no profit added while all other items (except for 'supervision,' which was discussed above) had 10% Profit added. (Defendant's exhibit 1.)
10. Plaintiff has proven by a fair preponderance of the evidence that it expended $ 1,138.07 for insurance. (Tr. 77-78.)
11. Plaintiff claims to be entitled to.$ 264.20 for fuel oil. While defendant concedes that if plaintiff is entitled to recover, it is entitled to recover for the fuel oil (defendant's memorandum, p. 10), the above figure includes allowance for 10% Overhead and 10% Profit. (Tr. 81.) Since the Court is disallowing overhead, plaintiff will be limited on this item to the cost of the fuel oil ($ 218.35, derived arithmetically) plus 10% Profit ($ 21.84), or a total of $ 240.19.
12. The Court finds that the subcontractor did not complete the cleaning and repairing of 106 air-conditioning units, as called for in the subcontract. (Plaintiff's exhibit 6.) The units were not in working order, and indeed little if any work had been done on them, when they were returned to the premises (Tr. 216-217; 278-280), although all of the 106 units which were taken were returned. (Tr. 279.) Plaintiff is therefore not entitled to recover any of the $ 2,650. (on the basis of $ 25. per unit) set forth in the subcontract.
13. It is stipulated that defendant made the following three payments to plaintiff:
July 12, 1961 $ 2,717.77
July 14, 1961 11,135.77
August 14, 1961 12,000.00
TOTAL RECEIVED BY PLAINTIFF $ 25,853.54
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