Whalen v. Smith Fireproof Construction Co.

Rule of Law:

When a contract expressly lists specific duties a party must perform, the legal maxim expressio unius est exclusio alterius applies, meaning that other similar duties not mentioned are presumed to be excluded from that party's responsibilities.

Facts:

• Plaintiffs contracted with defendant to set reinforcing steel bars for a department store at a price of $17 per ton.
• The contract stipulated the price would rise to $28.50 per ton if plaintiffs were 'obliged to use union lathers or union iron workers.'
• During the project, plaintiffs' non-union employees organized their own union, 'Local Union No. 405, Reinforced Rod Workers,' and demanded recognition.
• Plaintiffs continued to employ these same workers, who were laborers and not 'lathers or iron workers,' after their unionization.
• The contract also required defendant to furnish a hoist and for plaintiffs 'to pay the hoisting engineer his time while the hoist is being used by' them.
• As construction progressed, defendant incurred costs for progressively moving its hoists from one floor to another.
• After their employees unionized, plaintiffs continued to bill defendant biweekly at the original $17 per ton rate, and these bills were paid.
• Only after the work was complete and another dispute arose did plaintiffs submit a new bill claiming the higher $28.50 per ton rate for the later portion of the work.

Procedural Posture:

• Plaintiffs sued defendant in a court of first instance to recover disputed payments under a construction contract.
• The case proceeded to a jury trial.
• On the first issue regarding increased labor costs, the issue was submitted to the jury.
• On the second issue regarding hoist-moving costs, the trial judge gave binding instructions in defendant's favor, creating a counterclaim.
• The trial resulted in a verdict and judgment for the defendant.
• Plaintiffs, as appellants, appealed the judgment to the present court.