## Facts

- Pope, a general contractor on a state highway project, agreed with the highway agency to complete the work by October 1, 1973, later extended to November 5, 1973.
- Pope subcontracted with Guard Rail to furnish and erect steel guardrail within the prime contract schedule, incorporating required provisions of the prime contract into the subcontract.
- Guard Rail’s installation work depended on Pope completing preceding work so the guardrail site would be ready.
- Pope did not have the site prepared for guardrail installation until July 1974, about 266 days after the extended completion date.
- Guard Rail’s steel supplier offered a fixed price only for deliveries between August 1973 and early November 1973; because the site was unavailable, Guard Rail could not take delivery in that period and steel prices rose.
- When the site became available in July 1974, Guard Rail sought to renegotiate due to increased steel costs; Pope refused, and Guard Rail refused to perform at the original price.
- Pope hired a replacement subcontractor, paying $132,071.90 more than the original subcontract price, and the highway agency assessed liquidated damages for late completion.
- Pope sued Guard Rail and its surety for breach, seeking the replacement cost and liquidated damages; Guard Rail counterclaimed for lost profit.
- After a mistrial due to a hung jury, the trial court struck Pope’s evidence and entered judgment for Guard Rail and its surety on Pope’s claim and for Guard Rail on the counterclaim.

## Issues

1. Whether site readiness for guardrail installation within the project schedule was a condition precedent to Guard Rail’s duty to perform.
2. Whether Pope’s unexcused delay in preparing the site discharged Guard Rail from performing under the subcontract at the original price.
3. Whether Guard Rail had an express or implied duty to stockpile steel to avoid price increases during Pope’s delay.

## Decision

- The Supreme Court of Virginia affirmed judgment for Guard Rail and its surety on Pope’s claim and affirmed judgment for Guard Rail on its counterclaim.
- The court held that Guard Rail’s duty to perform was conditioned on timely site availability and that the condition did not occur when Guard Rail could perform.
- The court held the nonoccurrence was not excused because Pope’s delay beyond November 5, 1973 was unexcused as a matter of law and prevented the condition from occurring.
- The court rejected Pope’s stockpiling theory because the subcontract did not require it, Pope neither arranged for nor requested it, and evidence indicated stockpiling risked deterioration.

## Legal Principles

- In a bilateral construction subcontract, a subcontractor’s duty to perform may be subject to an express or implied condition precedent that the general contractor first make the site available; the duty does not become due unless the condition occurs or the nonoccurrence is excused.
- A party’s unexcused delay that prevents or frustrates the occurrence of a condition precedent constitutes a prior material nonperformance that can discharge the other party’s remaining duties.
- Courts will not impose an implied duty (such as stockpiling materials) absent contractual language, necessary implication, or established usage, particularly where the practice is not feasible or would cause deterioration.
- When the subcontractor’s duty never becomes due because the condition precedent fails without excuse attributable to the subcontractor, the general contractor cannot recover replacement costs or related delay damages from the subcontractor on a breach theory.

## Conclusion

Because Pope’s unexcused delay prevented timely site availability, a condition precedent to Guard Rail’s performance, Guard Rail was justified in refusing to perform at the original price, and Pope could not shift its excess completion costs or liquidated damages to Guard Rail; Guard Rail also prevailed on its lost-profit counterclaim.


R.G. Pope Constr. Co. v. Guard Rail of Roanoke, Inc., 219 Va. 111, 244 S.E.2d 774 (1978)