
    
      Opinion issued December 19, 1983
    
    MACHINERY & SYSTEMS DIVISION, A DIVISION OF CARRIER CORP. vs. DEPARTMENT OF PUBLIC SAFETY
    (CC-83-22)
    Frederick William Maier, Jr., Branch Service Supervisor, for claimant.
    Henry C. Bias, Jr., Deputy Attorney General, for respondent.
   PER CURIAM:

Claimant seeks $833.00 allegedly due under a contract to maintain air conditioning equipment at the West Virginia State Police Academy in Institute, Kanawha County, West Virginia. The contract began on January 1, 1980, and was to extend for one year. The last month’s invoice, dated December 1, 1980, was not honored. Respondent alleges that it had entered into a contract with another company to do the services which claimant was required to perform and that claimant did not, in fact, perform any services during December 1980.

The contract involved has a cancellation clause by which respondent may cancel the contract upon 15 days written notice. There was no evidence presented of notice to claimant. The contract required claimant to furnish the following:

“I. Vendor’s total maintenance contract includes recommended preventative maintenance procedures performed during regularly scheduled inspections (twelve annually) as well as any necessary emergency service, repair parts, refrigerant or repair labor.”

The contract goes on to describe various types of services to be performed monthly “as required” or monthly “during the cooling season.”

Frederick William Maier, Jr., Branch Service Supervisor, testified that his company did not perform any routine maintenance for December 1980 because the system was shut off. Had there been any service requests during that time, claimant would have performed the work. Mr. Maier stated that the contract did not require twelve monthly inspections, and his records indicated that work was performed during every month except December.

The language of the contract clearly states that it is to run for one year with payment of $833.00 per month. The contract does not state claimant will perform certain functions monthly. It is obvious that the duties claimant would be required to perform under this contract would be seasonal in nature, but payment for those services would be prorated over the term of the contract. Claimant should not be made to lose money on the contract simply because respondent entered into a second contract which overlapped the first. No evidence was presented that claimant did not fulfill the terms of the contract as required, nor was there any indication that any notice of cancellation was given. The Court, therefore, makes an award of $833.00.

Award of $833.00.  