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Burlington Northern Railroad Company v. General Projection Systems. Inc.5/2/2000
GPS and Burlington provided that "time is of the essence." Regarding the time frame for GPS's completion of the work, the contract provided:
Contractor will complete the Work or Services on or before the Completion Date or during the Contract Period below:
Completion Date:
3/3/95
Contract Period:
6/14/94 - 3/3/95 (Refer to Exhibit "J")Exhibit "J" is entitled "Project Schedule." It did not provide a specific date by which GPS's work was to be completed. Instead, it said that various phases of the project were to be completed "90 calendar days after notification by [Burlington] to begin work on site."
On November 18, 1994, Woodbine notified GPS that on December 1, 1994 GPS was to proceed with on-site installation of the audiovisual equipment. The letter stated, " ll on-site activities for the audio-visual system, including but not limited to installation, start-up and testing, are, therefore, to be completed within 90 days of this date. This date is, therefore, established as March 1, 1995."
GPS did not complete the project by March 1, 1995. At trial, GPS's president, Drake Wayson, identified several reasons GPS did not complete the work by that date. He explained that the rooms were not ready when Burlington said they would be ready. Some of the products specified by Burlington were not yet in existence; they were proposed to come on the market. WJHW, Woodbine, and Burlington would not approve substitute products. Further, between November 1994 and March 1995, Burlington continuously made significant changes to the project. In addition, Wayson testified that WJHW and Woodbine did not have the knowledge necessary to direct GPS.
Under the terms of the contract, Burlington was required to give GPS at least three days written notice of termination. On March 23, 1995, Woodbine's vice-president, Gary Coffman, called a meeting of all GPS's employees on site at the NOC to discuss the status of their work. Instead, GPS was informed that its contract with Burlington had been terminated. Citing GPS's failure to comply with the project schedule, Burlington gave GPS written notice of termination effective March 27, 1995. Burlington, however, made the notice effective immediately. Armed security guards were present at the meeting. GPS's employees were taken off site and were not allowed to return to the property. They were not allowed to take their personal property or GPS's property, which included two computers, tools, and equipment related to the project.
Burlington claimed that its right to retain GPS's property arose from the contract. The contract provided that, in the event of GPS's default, Burlington:
may, without prejudice to any other right or remedy and after giving Contractor three (3) days' written notice of its intention to terminate, terminate the employment of Contractor and may, at its option, take possession of all materials, tools and equipment thereon and finish the Work or Services by whatever method Owner or Agent may deem expedient or deduct from the final payment an amount equal to the cost which would have been incurred had Owner or Agent elected to finish the Work or Services.
Burlington did not allow GPS to make an inventory of the items confiscated. GPS had to compile an inventory from memory. Although Burlington compiled an inventory, GPS maintained it was incomplete. About three or four weeks after Burlington terminated the contract, the parties met to transfer property back to GPS. GPS employees were not allowed in the room where Burlington kept GPS's property. Burlington returned GPS's computers and some other property; however, it did not return
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