
    
      Opinion issued February 22, 1972
    
    VECELLIO and GROGAN, INC. vs. DEPARTMENT OF HIGHWAYS
    (No. D-505)
    
      Robert B. Sayre, for Claimant.
    
      Dewey B. Jones, for the Respondent.
   DUCKER, JUDGE:

This claim is for $6,540.00, which the claimant, Vecellio and Grogan, Inc., allege is owing to it under a contract entered into with the State Road Commission, now Department of Highways, on April 1, 1969, for the construction of a segment of a public highway known as Project Number S-726(3) located along W. Va. L.S. No. 1 near Medina, Jackson County, West Virginia. One of the provisions of the contract was for concrete guttering at the agreed unit price of sixteen dollars ($16.00) per square yard, and upon the completion of the contract the claimant contended that it had constructed 2,226.09 square yards of concrete gutter while the respondent measured the construction as 1,817.34 square yards.

There is no question as to the quality of the work or that this item of construction in any way failed to comply with the requirements of the contract. The method of measurement accounts for the difference in the quantity to be paid for, and the respondent either owes all of the amount claimed or none of it, depending on which method of measurement is determined to be correct.

The parties have stipulated that the correct amount of the difference in measurement is 2,185.82 square yards, which at $16.00 per square yard amounts to $5,895.68.

This case rests upon the same interpretation of the regulations and the applicable law as was determined in Claim No. 457 in this Court decided on December 14, 1971, in which case the claimant here and Foster and Creighton Company were the claimants therein and in which case this Court held that the measurement method used by claimants was correct, namely that the yardage contained in the flat surfaces of the gutters above the edges of the shoulders should be included in yardage to be paid for, and that the yardage should not be limited to that contained only in the remainder of the gutter. As the regulations involved and the applicable law are fully analyzed in the opinion of Judge Jones in that case, we deem it unnecessary to repeat the same here. In accordance with that opinion and decision, and the facts as stipulated in this case, we are of the opinion to and do hereby award the claimant the sum of $5,895.68.

Award of $5,895.68.  