its delay from September until November 1970 was G.C.S.'s presence on the job site from a period of two months after the contracted date for completion until a period more than four months after the agreed on completion date. This in turn caused the work of outdoor pipe installation to be delayed into the winter months, when progress was much slower due to inclement weather and the inability to get pipe fitters willing to work outside in the winter months. Foster Wheeler's four month schedule for this work took eight months to complete and this is attributed to the two month front end delay at the beginning of the job caused by G.C.S.'s continued presence. The jury found the evidence credible to support a finding of a one month delay caused by G.C.S.'s actions and we find a reasonable basis in the evidence for this conclusion.
Finding the fact of damages certain, we may make a reasonable allowance from all of the evidence as to the costs attributable to one party causing the delay. Peter Kiewit Sons, Co. v. United States, 151 F. Supp. 726, 138 Ct.Cl. 668 (1957); Chalender v. United States, cit. supra; Fuller Co. v. United States, 63 F. Supp. 765, 105 Ct.Cl. 248 (1946).
The evidence of damages which Foster Wheeler presented was not computed by a "total loss" theory, as rejected in Boyajian v. United States, cit. supra, i.e. the difference between its total costs and the amount it received. Foster Wheeler rather presented its evidence of its actual out-of-pocket costs attributable to the period of delay for such items as field office expenses, tool charges, supervision, management and home office expense. It does not represent direct labor charges for construction work. It presented such fixed costs for two separate four month periods of the delay and arrived at a four month's average. This translated into $159,371 per month, and the jury determined that the period of delay assignable solely to the fault and breach of G.C.S. was one month. While no witness testified that G.C.S. imposed a one month delay on Foster Wheeler at a specific cost, the Foster Wheeler testimony established the fact of delay, the fault of G.C.S., the cause of delay attributable solely to G.C.S. apart from other factors, and the cost to Foster Wheeler of the delay for a designated period of time. Our only question is whether the evidence is sufficient to allow the fact finder to determine if a reasonable basis for the allocation exists. Lichter v. Mellon-Stuart, cit. supra. We find that it was sufficiently proven.
The verdict of the jury on the Foster Wheeler claim is purely advisory. The jury heard the entire evidence in both cases and submitted answers to special interrogatories in the claim of Foster Wheeler v. G.C.S. (Civil Action No. 4-72 Erie). There was sufficient evidence to support their finding, and in accordance with the findings and conclusions set forth in the foregoing opinion the court finds:
1. That G.C.S. failed to complete its subcontract with Foster Wheeler in the time agreed upon.
2. That Foster Wheeler was delayed in the prosecution of its prime contract by delays in the completion of the G.C.S. contract for which G.C.S. bears sole responsibility.
3. That the evidence provides a reasonable basis for calculation of the amount of the delay suffered by Foster Wheeler due solely to the failure of G.C.S. to complete its work, apart from delays from other causes for which G.C.S. is not responsible.
4. The evidence provides a reasonable basis for calculation of the costs incurred by Foster Wheeler because of the delay caused by G.C.S.
5. The delay of Foster Wheeler in completion of its contract due solely to conditions for which G.C.S. was responsible apart from any causes for which G.C.S. was not responsible is one month.
6. The amount of the damage suffered by Foster Wheeler from delay caused solely by G.C.S. was $159,371.
Foster Wheeler prays for an award or prejudgment interest. Since the elements of this breach of contract suit were complex and disputed until trial, we feel that there is no equitable basis for an award from the date when the damages were incurred. However, the matter was clear and the damages capable of being liquidated at the end of trial, at the time of the advisory jury verdict. Therefore, we will allow interest on the sum of $159,371. from July 25, 1975.
Because the evidence has shown that defendant I.S.C. Inc. agreed to guarantee all contract commitments of its subsidiary G.C.S., Inc., judgment will be entered against both defendants.
THE G.C.S. MOTION FOR NEW TRIAL
The jury awarded G.C.S. damages on the following elements of its claim:
1. Travel pay for ironworkers $ 6,417.00
2. Balance due on building
3. Retention 8,417.00
4. Account debit from
February 24, 1971 invoice 6,484.42
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