Case of dispute over construction contract between plaintiff company and A company and B Company

[Case classification] : Contract dispute

[Commissioned time] : July 2017

【 Brief introduction 】

On May 15, 2012, Defendant A signed A construction contract with Defendant B, agreeing that Defendant A would contract to construct Defendant B's factory. The project cost is RMB 39.18 million. The project contents include civil engineering, water and electricity installation and commissioning, construction, passing the acceptance examination of relevant departments, and delivery to the owner. R & D building construction, R & D building installation, warehouse construction, warehouse installation, plant construction, plant installation, gate building, outdoor general and civilized measures costs, the contracting method is contracted labor and materials, the start date is May 15, 2012, the completion date is the end of March 2013, the construction period is 280 days. On May 28, 2012, the plaintiff signed A construction contract with the defendant Company A, stipulating that all construction contents of the factory to be built by the Defendant Company A shall be undertaken by the plaintiff, and the contents of the project shall be subject to the contract contents and compensation agreement signed by the two defendants.

Before the plaintiff signed the contract with the defendant Company A, the plaintiff had started construction in accordance with the construction drawings on May 15, 2012, and completed the pile machine project on June 18, 2012. However, when the plaintiff was preparing for the next step of foundation construction, the two defendants began to make major changes to the drawings, and did not sign a formal notice of suspension or any written notice, resulting in a large number of delays in the plaintiff's work. In fact, the plaintiff did not provide the pile repair drawings until the end of August 2012, and provided the construction drawings of the research and development building until the end of September 2012, and kept changing the drawings in the subsequent construction. Among them, the plant changes were so large that the defendant A was not qualified for construction, so the plaintiff had to agree to the two defendants to contract separately, the two defendants did not pay the project payment in time as agreed in the contract, and the professional subcontracting determined by the defendant B did not sign the contract and enter into construction in time, resulting in the plaintiff not completing the construction and completion acceptance until the end of 2014. The result is a huge loss in all aspects of the plaintiff. Since the two defendants changed the projects agreed in the contract at will, and the amount of changes was huge, the actual construction amount of the plaintiff had undergone great changes, so the plaintiff believed that the settlement could not be carried out according to the project volume, unit price and comprehensive rate in the contract, but should be carried out according to the national construction quota. The settlement project payment of the plaintiff's construction is 60,693,373 yuan. Defendant A has paid $44,015,698 for the works, and the defendant still owes the plaintiff $16,677,675 for the works. And due to the two defendants at will breach the contract, resulting in a large number of plaintiff missed work, wait for work, advance funds, machinery costs, temporary facilities, accommodation, car and horse costs and materials contract can not be performed normally and other huge losses, the plaintiff does not agree to pay the defendant Changxi company management fees, the two defendants should compensate for all losses.

【 Lawyer analysis 】

According to the principle of relativity of contract, the plaintiff claims that the settlement between the two defendants is effective only with their consent at the scene, but the plaintiff has not provided evidence to prove that it disclosed to the employer (Company B) that it is the actual constructor or that Company A subcontracted the project in question to the contractor when the two defendants signed the contract or during the construction. Therefore, according to the agreement between the plaintiff and Company A, the plaintiff claims that the settlement between the two defendants is invalid. The settlement of the project in question has been made between the two defendants in accordance with the contract signed by them, and the settlement is the true intention of the parties and can be confirmed. As for whether the settlement has been carried out between the plaintiff and the defendant company A, it depends on the agreement between the plaintiff and the company A. The plaintiff claims that according to the commitment letter signed by the plaintiff unilaterally, although the plaintiff authorizes the settlement between the defendant Company A and the company B, it is clear that it needs to participate in the confirmation, but the commitment letter is the unilateral intention of the plaintiff. The plaintiff has not provided evidence to prove that the defendant Company A has also agreed to the undertaking and is voluntarily bound by the undertaking, so it can be considered that the undertaking is not binding on the defendant Company A, so even if the plaintiff believes that there is no settlement between the plaintiff and the defendant Company A and requires the review of the disputed project in this case, the corresponding evidence should be provided to prove the above facts. As for the pricing principle, although the defendant A company illegally subcontracted the disputed project to the plaintiff for construction, so the contract signed between the plaintiff and the defendant A company is invalid, but it does not affect the agreement on price terms and engineering quantity confirmation in the contract, now the plaintiff sets aside the contract agreement and requires the price to be evaluated in accordance with the Shanghai 2000 quota as the pricing principle, so it is considered to be groundeless in law.

【 Verdict 】

After lawyer Wang Zhen entrusted agent, the court rejected all the plaintiff's claims.