## Facts

- A general contractor held a unit-price contract with the State of New Hampshire to construct a highway bridge, including Item 15a, “Concrete in Bridge Deck,” priced per square yard.
- The State’s specifications defined measurement for Item 15a as the “number of square yards of concrete surface included in the bridge deck, including the sidewalk,” and treated curbs as incidental.
- The State’s proposal stated listed quantities were approximate and for bid comparison only, and that payment would be for actual quantities performed in accordance with the contract.
- The general contractor subcontracted the Item 15a work to a concrete subcontractor at $12.00 per square yard, and the subcontract bound the subcontractor to conform to the State’s general specifications where applicable.
- The subcontract further stated payment would be for the “quantity of material approved by the State Highway Commission.”
- After the subcontractor completed the deck concrete work, it sought payment for approximately 8,100 square yards, based on an expansive surface-area calculation that included additional surfaces beyond the deck’s top.
- The general contractor asserted payment was limited to the deck’s upper surface (including sidewalks), stipulated to be 4,184 square yards.
- The trial court found that, when the subcontract was made, both parties believed payment would be based only on the upper surface area, consistent with the State’s measurement provision.

## Issues

1. Whether the subcontract, incorporating the State’s specifications, required payment for Item 15a based on all concrete surface area placed by the subcontractor or only the bridge deck’s upper surface area (including sidewalks) as defined by the State’s measurement clause.
2. Whether the trial court properly relied on the incorporated measurement provision and the parties’ contemporaneous understanding to construe “square yards” under the subcontract.

## Decision

- The court affirmed the trial court’s contract construction.
- The subcontractor was entitled to payment only for the square yards corresponding to the bridge deck’s upper surface area (including sidewalks) as measured and approved by the State, not for additional surfaces it claimed.
- The incorporated State specification governing measurement controlled the meaning of “square yards” for Item 15a under the subcontract.

## Legal Principles

- A subcontract that incorporates plans and specifications makes those documents part of the parties’ contract and gives controlling effect to applicable technical provisions, including measurement clauses.
- In unit-price construction arrangements tied to a defined pay item, measurement and payment terms in the governing specifications control the payable quantity absent clear contrary subcontract language.
- Where contract language is disputed, a factfinder may consider evidence of the parties’ shared understanding at the time of contracting to resolve the intended meaning of payment terms.
- A subcontract payment term requiring quantities “approved” by a public agency links the subcontractor’s compensation to the agency’s measurement and approval process for that item.

## Conclusion

The court enforced the incorporated measurement definition for Item 15a and upheld findings that the parties intended payment to be based on the deck’s horizontal surface area as approved by the State, limiting the subcontractor’s recovery to the stipulated upper-surface quantity rather than a larger surface-area calculation.


Berke Moore Co. v. Phoenix Bridge Co., 98 A.2d 150 (N.H. 1953)