remained unready for stonework; accordingly it then withdrew its forces from the site. VMC claims that this action was simply the implementation of its stated intention to mitigate by not maintaining an unutilized job presence. VMC asserts that in mid-November it still had not decided to rescind.
VMC had decided by December 12, 1979 and on that date stated by letter that it would henceforth treat the subcontract as rescinded.
BCI's version of the events of the Fall of 1979 emphasizes VMC's allegedly unreasonable refusal to consider methods and sequencing of operations which deviated from those earlier anticipated and agreed upon. BCI suggests that VMC's decision to rescind was made well before December, 1979 and that it simply waited until the time which appeared to be to its greatest advantage. BCI suggests that, VMC coldly calculated the rescission and firmly resisted commencement of stonework by using as excuses the unprepared status of the job site and BCI's repeated requests for work out of agreed sequence. Only when VMC ran out of excuses, charges BCI, did it finally decide to rescind.
B. The Legal Issues Presented by the Cross Motions for Summary Judgment
Plaintiff's motion for summary judgment "seeks a determination that Vermont Marble Company was justified in treating the subcontract as rescinded regardless of the relative fault (for delays) of the Architect, BCI or BCI's other subcontractors." VMC Mem. at 89. VMC's principal argument is that the delays irrespective of where fault lay, amounted to a material breach of the subcontract and thereby gave VMC a common law election: "to terminate the contract or perform and sue for breach damages." VMC Mem. at 90.
BCI presents a number of arguments in opposition to plaintiff's motion. BCI charges first that the delays alone did not amount to a material breach. BCI further asserts that rider P 32 precluded rescission as an option to VMC. Next BCI argues that VMC was bound by the "disputes" clause of the prime contract.
As an alternative argument, BCI contends that VMC, if it ever had a right to rescind, waived that right by failing to exercise it promptly when it arose.
BCI's motion for summary judgment is less complex. It asserts, simply, that, even if all the facts alleged in the complaint are true, VMC had no right to rescind the subcontract or if it had the right, the right was waived. Therefore, argues BCI's motion, in rescinding, VMC itself breached the subcontract. VMC of course opposes BCI's motion on the ground that it rightfully and timely rescinded.
C. The Court's Conclusions
The Court concludes that, as a matter of law, VMC wrongfully rescinded. Summary Judgment should, therefore, be entered for defendant, BCI.
We begin our discussion of how we reach this conclusion by concurring wholeheartedly in Judge Kern's recent observation that
except in the middle of a battlefield, nowhere must men coordinate the movement of other men and all materials in the midst of such chaos and with such limited certainty of present facts and future occurrences as in a huge construction project.... Even the most painstaking planning frequently turns out to be mere conjecture and accommodation to changes must necessarily be of the rough, quick and ad hoc sort, analogous to ever-changing commands on the battlefield.
C. J. Coakley Co., Inc. v. Blake Construction Co., Inc., 431 A.2d 569 (D.C.App.1981).
We believe the subcontract herein was negotiated with special attention to the great uncertainties which face major participants in a monumental undertaking such as was the Dirksen project. Rider paragraph 32 of the subcontract, painstakingly negotiated, reflects the parties attempt to provide for their respective rights and obligations under various circumstances which might arise during the course of performance. The details of such circumstances, like the details of a battle, obviously were quite unforeseeable. It is because of the inability to precisely foresee difficulties that parties to construction subcontracts such as this one attempt to use general language which will provide guidance in as broad a range of situations as possible. In our view, rider paragraph 32 of the instant subcontract represents just such an attempt.
Before returning to rider paragraph 32, let us examine VMC's central argument. VMC asserts that rescission was proper because the delays in the preparation of the Dirksen job site for the commencement of stonework constituted a material breach of the subcontract. The cases are legion which stand for the proposition that a material breach of contract gives rise to election by the non-breaching party: the latter may either terminate the contract or perform and later sue for breach damages. See, e.g., John W. Johnson, Inc. v. Basic Construction Co., 292 F. Supp. 300 (D.D.C.1968), aff'd. 139 U.S. App. D.C. 85, 429 F.2d 764 (D.C.Cir.1970).
The first and principal issue confronting the Court, then, is whether, as VMC claims, BCI had materially breached the subcontract at the time VMC rescinded.
VMC relies foremost upon Article IV of the subcontract wherein appears the language: "(Time) is of the essence of this Agreement." This language, VMC contends, entitled it to rescind upon the occurrence of any slippage from agreed performance dates.
In VMC's view, any delay at all amounts to a material breach of the subcontract.
This argument is too facile. It ignores the cardinal principal of contract interpretation which requires that a contract be read and interpreted as a whole, finding meaning in all parts if possible, while finding meaning in the whole.
Other provisions of the subcontract favor a less drastic interpretation of the time-is-of-the-essence clause. Article IV itself suggests that the clause may be for the benefit of the contractor rather than the subcontractor since the article otherwise exclusively discusses the subcontractor's obligation to perform. It requires VMC to perform when and in such order as BCI directs. The context of the clause suggests that it may be the subcontractor's obligation rather than its right to perform at a certain time which is of the essence.
Even if the favored reading of Article IV were that which makes each party's timely performance important, VMC's argument fades in persuasiveness when viewed in conjunction with rider paragraph 32. The very first provision of this carefully drafted paragraph belies the assertion that any delay gives rise to an immediate right to rescind. Under this clause if VMC is "obstructed or delayed ... in the Work because of conditions attributable to the (AOC)," VMC has but one course of action: "it shall promptly make a claim therefore in writing." (emphasis added). The term "shall" admits only of the interpretation that the requirement is mandatory, leaving other avenues, rescission for example, closed. So, under the subcontract, at least where delays are attributable to the Architect, rescission is not an option available to VMC.
In light of these other provisions, we conclude that the phrase "time-is-of-the-essence" as used in this subcontract did not give to VMC a right to rescind on the basis of any delay, however slight and from whatever source, in the readiness of the site for its work.
2. Rider Paragraph 32
Indeed, our evaluation of the subcontract, especially rider paragraph 32, leads us to the conclusion that delay alone could not amount to a material breach. In short, under this subcontract, rescission becomes an available remedy only when the remedies provided in rider paragraph 32 fail of their purpose. In the case at bar, the latter point was never reached.
Rider paragraph 32 has three separate, but related, clauses. As noted above, the first clause mandates that VMC present claims for extensions of time and money damages to the AOC (through BCI) when VMC's performance is delayed by conditions attributable to the AOC. The second clause permits BCI, "for just cause," to delay or suspend VMC's performance at any time without obligation except to grant VMC an extension of time equal to the time lost. The third clause is best read as an amplication of, or at most a corollary to the second clause. It simply makes plain that should BCI delay VMC's work for an unreasonable length of time, VMC has the right to "make claims
These three clauses were designed to provide and define the rights and obligations of the subcontractor and the contractor in the event of delays. The meaning of these clauses would be grossly warped and their effectiveness diluted if VMC were to have, in addition to the rights therein provided, the alternative but unmentioned right to walk away from the project without obligation. The parallel goals which the clauses seek to achieve are (1) to ultimately provide fair compensation to VMC for the work it is required to do while (2) prosecuting the project with a continuity uninterrupted by disputes over precisely what compensation is fair under the circumstances. In other words, the objective of rider paragraph 32, it seems, was to give the prime contractor the control necessary to move the work along without prejudicing the subcontractor's right to adequate compensation. It is essential that the prime contractor on projects such as Dirksen be permitted to say to its subcontractors, in essence, "Work now, ask questions later." The goal of continuous work would be difficult to achieve if every time it exercised its right to suspend work under the second clause, BCI risked that VMC would interpret the delay as a material breach entitling it to rescind. Even if such an interpretation by VMC were wrong, the delay on the project might well be compounded. In light of rider paragraph 32, we conclude that even "unreasonable" delays are not material breaches of this subcontract. Rather, a material breach might arise only if BCI refused to pay a properly presented claim. Nothing in the record indicates that VMC ever presented a specific claim for additional compensation, or that BCI ever refused to pay such a claim.
Accordingly no right to rescind ever arose in VMC.
In light of this conclusion, we need not reach the other issues raised by the motions for summary judgment.
Accordingly, it is this 20th day of August, 1981,
ORDERED, ADJUDGED and DECREED that plaintiff's Motion for Summary Judgment as to Liability or, Alternatively, for Partial Summary Judgment be and the same is hereby DENIED; and it is
FURTHER ORDERED, ADJUDGED and DECREED that defendants Motion for Summary Judgment be and the same is hereby GRANTED.