Wednesday, December 18, 2013

Thos. J. Dyer Co. v. Bishop International Engineering Co. case brief

Thos. J. Dyer Co. v. Bishop International Engineering Co. case brief summary
303 F.2d 655 (1962)


CASE SYNOPSIS
Appeal from a decision of the lower court (Ohio) after entry of summary judgment for appellee subcontractor and against appellants contractor and surety for materials and labor furnished in a construction project pursuant to a payment provision of the original subcontract.

CASE FACTS
Appellee subcontractor brought an action against appellants general contractor and surety for materials and labor furnished by it in the construction of a project. The lower court made findings of fact and sustained appellee's motion for summary judgment.

DISCUSSION

  • The reviewing court examined only the stipulated facts, finding subsequent proposals and acceptances subject to the original subcontract, and affirmed. 
  • The court construed the parties' intention as to the payment provision from the contract language, subject matter, and in light of the circumstances, and held that the provision was to fix the time of performance, but not to make the owner's payment a condition precedent.
  • To construe the provision as requiring appellee to wait until appellant contractor had been paid was held to be an unreasonable construction that the parties did not intend at the time the subcontract was entered into.

CONCLUSION
Affirmed because subsequent proposals and acceptances were subject to the payment provision of the original subcontract, and that provision was not a condition precedent that required appellee subcontractor to wait to be paid until appellee contractor had been paid.

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