*1 59f may inept bearing legislation have a on future any confusing interpretation language on almost defies sensible basis. judgment appeal re- taken is from which
versed.
RUDOLPH, SICKEL, JJ., concur. SMITH ROBERTS, J.,P. dissents. (dissenting).
ROBERTS, P. J. While I am accord statutory interpretation majority with the set forth in the yet opinion, I am convinced that the record reveals no basis for reversal. The trial court its rendered decision on presented. question issues whether settlements were County acquired prior in Davison date of effective Act, far. ascertain, the preserved so as I can was not raised and'consequently trial court should not be appeal. on considered judgment my opinion should in be affirmed. al.,
ALEXANDER et STATE, Plaintiff v. Defendant (57 121) N. W.2d 1953) (File Opinion February 24, 9215. No. filed *2 Minn., Peterson, Mankato, and Tem- Smith, McLean & Luhy, Huron, Plaintiffs. for mey & Atty. Gen., Benj. Mintener, Asst. Dunham, D. Ralph A. Atty. Atty. Gen., for De- Asst. Flittie, Gen. and William J. fendant. doing partners business un-
ROBERTS, P. J. Plaintiff Company en- Construction firm name of Alexander der the Dakota the State South tered into a written contract with required for furnish all the materials do all work and surfacing shaping compacting the base and bituminous County Highway No. 34 in Sanborn accord- miles of 17.44 High- ing furnished the State they way fully not been Plaintiffs claim that have Commission. presenting paid a verified claim for the and after addi- having $14,953.82, amount of and the same been dis- tional original allowed, an court to re- action this commenced alleged pro- due them. to be The written cover balance posal nine items. contained The items controversy. 14, 25 23 and are here Plaintiffs numbered designated $304,181.94for materials received these have They allege contemplation within items. contract following quantities
they furnished they paid: not been have for which Quantity Unit Amount Item Furnished Item Price Claimed No. Course, 14 Base Crushed Surfacing in Gravel 514.3 $2.24 tons $1152.03 Place gals. Liq. Mat 29774 Bitumen for .16 4763.84 25 Plant Mineral Mixed Aggregate 2031 tons 4.45 9037.95 . complaint on the The motion of the to dismiss state ground jurisdiction render that the court without judgment damages resulting breach of for from 48, State, v. 830. denied. Alexander 48 N.W.2d 74 S.D. paid asserting all had state thereafter filed an that it answer referred amounts due This court under the contract. Whitney, Judge cause to Circuit, O. Judicial the Hon. K. Sixth con trial and referee was instructed hearing findings report con clusion clusions of proceedings of fact and his transcript of law and to therewith submit findings before him. The and conclusions referee the effect *3 to the were‘exceeded without authorization at least plaintiffs of of extent are materials for which now demanding payment.
Plaintiffs assert that the referee the terms misconstrued of that it is a unit and that plaintiffs payments are entitled to on the basis of the unit prices specified for therein all under the materials furnished engineer inspectors charge direction of the and in construction. It is admitted of that the recovery plaintiffs placed high- for which seek on were way. complaint of The cause in action set forth for the value of extra work which would under the of terms require plaintiffs the contract a written order to enable the they question to recover and we do not understand that accuracy plans specifications relating and to plans specifications prepar- of materials. The upon plaintiffs ed in advance and based their bid and part project which became a of the contract divide the into segments specify seventeen materials for each the of
required provide a bituminous mat aof fixed width and inches in thickness as shown in a cross-sec- “2-f” McCready, diagram employed tion therein. Mr. who was on by plaintiffs project employed high- and who had been way years, work for 15 construction testified that he was in laying charge finishing machine the bituminous materi- regulated by al, machine; thickness of a is mat a on screed plant dumped mix is that from trucks on an apron conveyed of at the front the machine and is back and highway; a augers that on the distributed is means of adjustable consisting “stinger” of an as a known device depth mat; gauge to measure was used on rod depth; using inspectors measured this device
that state adjusting the their instructions he followed and that during they that Plaintiffs screed. admitted construction tonnage computations and lineal the basis made no partnership plaintiff testified A member distance. “about the twelfth ma- that too much discovered mile was Expert highway”. going for the witnesses on the terial adjustment upon the of the screed basis testified that state tonnage accurate method lineal distance the most following possible to main- method it such and that control tain control per The amount of one cent. within about judgment plant mix for which ask bitumen compliance with sufficient mile to build additional of bitum- an highway. inous among following pro- proposal others the contained plans, specifications, special basis of the
visions: “On the provisions proposed use, form of contract under- necessary machinery, signed proposes tools, to furnish all apparatus construction, to do all the and other means specified, manner furnish all materials in the work and to finish the entire *4 (80) Eighty project weather within work- days, ing accept compensation as full therefor the and to products amount the summation of the of the of actual finally multiplied by quantities, determined, as the unit prices undersigned quan- that the bid. The understands subject decrease, or mentioned below are to increase tities hereby proposes work, all of as and provisions decreased, with or accordance the increased of prices specifications, and at the unit bid.” on Plaintiffs the State the form furnished serted Commission in- item in the bid for each column- headed price” also the total amount bid and bid on each “Unit proposal bid”. The “Amount item the column further undersigned understands that the “The ‘Total or states that immediately as herinbefore set forth Bid’ Sum Gross paid proposal accepted if which will be this final sum computed done, and the work purpose for the but that such sum comparison of of the bids and the submitted determ- ination amount of the contract bond”. provisions pertinent read: contract “The said agreed agree presents has
Contractor and materials, these does * * * * * * every furnish all and labor of kind and to construct in most substantial and workman- plans specifica- like manner and in accordance with the and therefor, tions the various items of work awarded the said * * * performed contractor. The said work shall be in ac- meaning plans cordance with the true intent and and specifications including special provisions, therefor, specifications, including special pro- hereby part visions, an referred and made essential fully this as and to the effect as if same same length body forth had been set and shown at in the of this * ** In consideration of the faithful according of the work embraced under this to the party terms hereof to the satisfaction of the first part, party part agrees pay contractor, said of the first lump prices actually such unit or sum for the as work done proposal accompanying are set forth in the this subject and in manner to the conditions as forth set specifications.” in the said right deal with the reserved in the
state to increase or decrease shown in plans sary any proposal or to omit as it neces- them deems payments quantity
and authorize on the basis actual any whenever in- furnished item has been They provisions regard- creased or decreased. also contain ing supervision pro- control the work. Some of these may Inspector visions are follows: “An be stationed on report progress the construction to to the as to the being performed, work, in which it is manner appears report the materials furnished whenever performed Contractor fail to fulfill the re- the work *5 quirements specifications of the and to to call any the attention of the fringement. in- Contractor such failure or other inspection, however, Such shall not relieve any obligation of to Contractor all of the work 598 specifica-
strictly requirements in with the accordance arising any dispute between the Contractor In tions. case of Inspector furnished, manner to or and the of as materials performing Inspector work, author- shall have ity reject question suspend or work until the Engineer. by issue referred and decided at can be by by performed Contractor, after order written Work accepted, Inspector suspend operations, or will be not Inspector paid for, author- The the Commission. any enlarge, revoke, alter, or release of ized to these any specifications, approve accept portion nor to or contrary plans work, issue nor to instructions specifications. Inspector shall in no case act as perform! Contractor, other for the nor or in- foreman duties management Any the work latter. terfere with the Inspector may give the shall advice which Contractor Engineer binding the or the Com- in nowise be construed way, releasing any nor from mission in Contractor ful- specifications fillment under the the terms the contract.” The heading Payment” provide: “Measurement and completed payment “After the and before final work is is therefor, make made will final measurements per- quantities of various determine the items of work to formed as the basis in all cases for final settlement. The Contractor per- paid be for the actual amount of work will with as shown formed accordance these measurements, made the final with waste deductions any unauthorized work.” and all theory be can best stated language proposal “The of their learned counsel: con- a that this not fixed sum but tract each recite quan- price contract; unit that it is understood that the a subpect decrease, to increase tities not final but will be made on the that settlement basis actual require plans the construction furnished. pavement fixed width and not less than inches in any, plus, thickness, variation, e., if i. with ex- plans show the mat inches. The to be installed 2 cess plus. It is true that the contain inches an estimated per required produce yield, or estimated mile to
599 specified speci- pavement, plans or the but nowhere do the yield the or re- fications limit the estimated quire the to build road for a fixed sum. No- contractor the yield. appears, guarantee where, it does the the contractor agrees He to build road under detailed directions and for instruction of the State a consideration based quantity of furnished.” units required question
If materials in were not performance of and outside its terms contract plaintiffs by recover cannot as materials furnished direction agents although they may employed state have been superintend the execution of See contract. Kansas City Bridge State, 580, 343; v. 61 Co. D. 250 S. N.W. Griffis agents State, 439, 11 v. S. D. N.W.2d 138. If the by justified plaintiffs made state demands not the contract right comply, refuse to but had cannot re authority if was not cover exercised accordance with its authority Highway Engineer terms. State subordinates to bind the must his state be found
As we understand the contention counsel for plaintiffs, it is that the recited in the simply subject estimates decrease increase without authorization and that written settlement must be actually made on the ished at the basis furn agreed prices. position unit This is not sus Ky. Education, tained cases like Dance v. Board of by plaintiffs, 67, 90, 92, 176 S.W.2d cited wherein there was recovery supplied by for additional material without written from contractor order That architect. independent case was one contract but the work not where caused miscalculation of architect specifying required improve in ment the number of bricks for the necessary completion. holding, to its In so recognized a distinction work” and court between “extra hardly “additional work”. court said: “It can be said that this additional brickwork was ‘extra within work’ meaning requiring signed order say Rather we architect. would this was ‘additional performed. work’ without which contract could not be (¡00 by the must issued
‘Extra work’ for an order it, as used architect before can recover the contractor *7 arising of us, out but in the contract before refers to work required entirely independent was not which performance. for we in ‘additional work’ which its But the allowing work that is are the to recover is contractors necessarily required performance in the and we it be carried out.” As have without which could not previously of in the instant case no claim stated there is engineers prepara- in the the error or miscalculation They specifications. for made allowance tion and of required computing compaction of amount materials in the mat of fixed width in to a bituminous a and order construct quan- “2-j-” that in and is conceded the inches thickness were sufficient to have the tities recited required of dimensions. bituminous mat the constructed a supply contemplated plaintiffs would that The contract scope specifications and we can- materials within the of payments accept'the view were to made not upon that because prices of to unit the basis of subject supplied to increase or without were decrease be written It our authorization. is conclusion that compli- quantities materials there was not a substantial of clearly specifications and that the referee ance with right holding that increased materials for beyond payment' were demand plaintiffs having furnished more ma- of the contract. having required than was contract without terials procured necessary authorization, is the state not bound. presumed a understand to written contract Parties import have entered into-the contract of its terms rights obligations. knowledge respective of their with Judgment for defendant. SMITH, JJ., concur.
RUDOLPH (dissenting). LEEDOM, JJ. This is a con- SICKEL pf plus a mat bituminous surface on a inch tract for given two Highway highway. strip estimated of complete job, quantities materials needed-to incorporated contract. The ma- were estimates these performance exceeded the contract terials used in Highway Engineer’s Com- estimates, amount rejected the ex- of the Contractor mission has the claim dispute the excess the amount as to cess. There is no price materials used, unit nor as to the units of materials as fixed the. contract. agreement unit
Claimant contends obliged contract, and that the Commission pay in the used for all excess-materials undersigned provides: understands ‘The The contract subject to increase mentioned below are hereby proposes decrease, and all or decreased, in work, accordance with as increased *8 specifications, prices provisions bid.” and at the unit of the performance” agreed pay ac- for “faithful The State to cording contract, to the terms of the satisfaction to the lump prices for work act- sum “such unit or of the State accompanying proposal ually this are forth in the done as set subject manner and to conditions and in the specifications”. forth in the said as set provide: specifications attention is “The bidder’s The quantities of work fact that the estimates to the called speci- furnished under these done and materials to be pro- plans accompanying fications, as shown on the only given approximate posal, as of calcula- a basis awarding comparing The the contract. bids tion for any responsibility not assume State does right construction, given in the reserves the obtain shall any quantities shown, omit or to or diminish the to increase of necessary.” Spec. 2.2. them, it deems specifi- are not of materials estimates of they exactness, nor are limitations cations pay liability. agreement the of the is to State State’s performance price used in the for all materials unit “* * * quantities ma- That contends: The State except plans proposal specified final in the terials changes power the method to make of the State specifications.” set forth in Also: “Under responsibility it that was the to see to contractor highway no excess material unless he had went into this authority apply written such excess material”.
“What we have is a contract to do a defined according price work a unit to certain with specifications payment reading feature. A fair can- produce any not different conclusion but that the unit payment feature was inserted in the contract for the sole Engi- benefit neer the State in order that the State might increase or decrease the work to be done and having readily so, done have a ascertainable basis for re- computing payments to be made the contract.” under interpretation
This “extra the contract confuses work” which relates to materials furnished and work done in addition of the contract and for which change required, order is and excess materials used in the according speci- of the contract fications. recognized speci-
The distinction is 4.4 Section following language: fications in the “The Contractor shall work in such addition approximate may to the shown on the estimates as necessary by fully complete be deemed project contemplated. project may limits also be changed necessary. as deemed *9 *
“* * If the sum total of the increase or on decrease figured prices all items at the unit contract not more than (25) twenty-five per original cent of the total contract the accept payment Contractor shall receive and in full on the prices.” basis of the contract unit quantities In this case the claim is for or units used in quantities contract, the in addition to the Engineer, shown on the estimates of the and the claim allowable under the referred to above. Highway The Commission contends that because the project units of materials used in the exceeded the esti- Engineer, compacted upon mates the the mat laid the highway specified plus. exceeded the thickness of inches high- necessarily deposited the on The were way depth to al- sufficient measured at a and the thickness compac- compaction. that for estimated low witnesses necessary inch. It tion would amount to V2 to %th testing depth by spreader probing to set spread by operated stinger, with an instrument called a Engineers Inspectors. evi- Commission’s by compaction allowed dence fails to show the amount Engineer arriving does the Neither at his estimates. by compaction for the -amount allowed evidence show depth measuring Engineers Inspectors of the the spread. no the thickness There is evidence to show compaction, with measured and it now be mat after cannot solidity. stinger The evidence does not show because of compaction. any attempt it to measure since prove relies to The evidence which the State Engineer’s of ma- estimates use of excess materials is the estimates of in the contract. Those terials contained * * “* only only given approximate, comparing as a basis awarding the con- for bids and of calculation “They in the not intended to obtain construc- tract”. were obliged Spec. 2.2. The Contractor tion”. the work may applying such additional “as fully necessary by Engineer complete deemed project contemplated”. consumed exceed If the materials “* * * estimates: less than the estimate 25% accept payment in full on the receive and shall Contractor prices”. Estimates of of the contract unit basis probative no value materials under this contract have complete quantities required the con- whatever as to tract. prior are consistent with deci- The above conclusions England State, v. 61 D. of this court. The case S. sions quantum 628, 132, was an action on meruit 246 N.W. and the had authorized work not In could not recover. modified. The Contractor never been City held that extra work is that case was Kansas required performed to be provisions could not waive con- *10 In the case the claim was for extra work. Griffis tract as extra work and it was held that for such a written order required; Engineer Inspector work is that the and the could vary not the contract. None relate to of these three cases perform materials excess of estimates needed to the con- according tract to its terms. * * Highway Commissionalso contends that: proved employees
facts show that the officers Highway Department attempt State did not even to exercise a direct of the contract. positive * * [*] control over Under the in their it was the respon- sibility of the contractor to it see to that no excess materials * * highway. went into this provides
The contract work shall be done under supervision Highway Engineer the direct and to the complete satisfaction of the State Commission. Spec. 5.8. authority Inspectors specifications,
As to the provide: 5.7,
“Authority Inspectors. Inspectors and Duties of em- ployed by inspect the Commission shall be authorized to all may inspection work done and all materials furnished. Such any part preparation, extend to all or of the work fabrication, or of the materials to be used. manufacture may Inspector
“An be stationed on construction report progress to manner in it to the work, as to the being performed, report whenever
appears per- that the materials furnished and the work by requirements formed the Contractor fail to fulfill specifications' and to call to the attention any infringement. of the Contractor such or failure other inspection, however, Such shall not relieve the Contractor any obligation strictly all of the work in ac- specifications. cordance with the any dispute arising “In case of between the Contractor Inspector furnished, as to materials or the manner performing Inspector work, shall have the author- ity reject suspend question work until Engineer. at issue can be referred to and decided performed Contractor, Work after written order
605 accepted, suspend Inspector operations, will not Inspector paid auth- for, or the Commission. any requirements enlarge, revoke, alter, release orized to of any portion accept specifications, approve or nor to these contrary work, nor to issue instructions * * *” specifications. Engineer, Rempfer, Highway the State Harvard C. only obtaining control method of exact testified that have over areas that of area and measurements been compacted. spread Harris testified Mel He Engineer. Highway Project was the Com- was the Sanders carry job representative out Com- mission’s on the regulations specifications. mission’s instructions and the might not be witness testified that excess accepted wrong. also that the road was He testified accepted spreading machine was Commission. universally equipment, used. one standard Engineer for Summerside was Assistant Construction Highway Department. only He testified that the ef- checking method of fective over materials was the control quantities spread given on a area. Lovejoy, Engineer, he did testified that Bituminous going not know that materials in excess of estimates were prepared. in until final estimate had been Project Engineer, Harris, had testified that he charge usability operations, materials, and control interpretation plans; that he visited job times, Inspectors attempted through the know that ex- He did not to take over. not joh, control during going tonnage course construction. cess during progress of the work In- no did Chief At time they yield. spector getting him not tell were Sanders “If it he tell me.” Sanders knew did not representative,
Sanders, that he a Commission testified job, gave they running long on the but that he knew were told no to the Contractors’ men but them about it. orders McCready, .Superintendent Contractors, for the tested depth assisted if it and Sanders watched and him see (the sinking enough. stinger) far or too not far stayed with men
Either Sanders or one of the Commission’s constantly operating, the Contractor the machine when dump “if our man was not allowed to a load in the machine gave sense, there.” was not “I orders in the strict never suggestions McCready cooperative I but made and I found *12 following my suggestions.” in Highway Inspector,
Youell, Commission testified that Inspector job he worked as of the time the 10% quantities material; of tons checked took the number early job, given used in a on the and once distance twice afterwards; the ex- test that twice first showed gave tonnage being very slight no and he cess orders used was men; Mc- it over with to the Contractors’ talked Cready. Highway that the estimates Commission contends lay according specifications,
were sufficient mat premise and on this contends that the mat must ex- have specifications ceeded the in thickness. The contention that the thickness of the mat exceeded the by any supported evidence whatever. It should be noted measuring quantities according that after the road at least three times to area on
during progress of the work Inspectors in found no error the thickness of the mat change setting and made no in used of the instrument making the measurement of thickness. The Commission employees knowledge and its had no use of computations of estimates until excess were between made job used, the estimates and the finished. The after the only reasonable conclusion one can draw from these facts is that the estimates work and materials only, contained in the contract were treated as estimates regarded by Highway and that the estimates were not liability as a limitation Commission on the of the State under the contract. including specifications, clearly estab- job by Highway
lishes the control of the Commission through Engineers Inspectors, its and the record shows power. authority Engineers the exercise of that Inspectors suspend operations disagree- in case of power disputes ment, and the to settle question. on this decisive in its contention is correct If the Commission subject final, materials are estimated price
only change unit order, not a to a then the contract price price fixed con- If it is a but a fixed Engineers Highway Inspectors then, tract with the spreading complete as in this control absolute complete when the case, of the contract spread of materials had the estimated Contractor highway. interpretation is not not contract Such justified. By were the estimates the terms only calculating approximate given basis for as a final but They awarding comparing were bids, the contract. and subject necessary by as deemed to increase or decrease Engineer, imposed upon the Contractor and the contract duty spread the unit when materials at additional necessary fully Engineers to be this was found complete contemplated project. order was No extra work *13 changed order of the unless the contract limits were Engineer order. These are the dis- there was no such tinguishing a unit features of opinion that the stated it is our
For the reasons above paid. be allowed and should claim Contractor Appellant Respondent, TOMLINSON, FRAGER, v.
(57 618) N. W.2d 1953) (File Opinion 16, No. filed March 9325.