153 Iowa 362 | Iowa | 1911
Drainage district No. 5, in Webster county, having been duly established, the contract for constructing the ditch was let to the plaintiff at a stated price per cubic yard of excavation. 'Eighty percent of the compensation thus agreed upon was to be paid as the work progressed upon monthly estimates made by the engineer in charge of the construction. Concerning the remaining twenty percent of the sum thus earned, the contract pro
Plaintiff alleges that it excavated the ditch according to contract; that the same was done under the charge and direction of engineers appointed by the board of supervisors for that purpose; that said engineers made and reported monthly estimates of the work done during the period of its prosecution; and that upon said estimates plaintiff has been paid eighty percent of the contract price for its services; but, notwithstanding the entire work called for by said contract has been fairly and fully performed in the manner provided by said agreement, the defendants refuse to pay the remaining twenty percent of the stipulated compensation, or to issue warrants therefor, or to make assessment upon the drainage district to provide the means for such payment. It is further alleged that defendants, with some of the property owners within the district, have wrongfully conspired to cheat and defraud the plaintiff out of the unpaid remainder of the contract price for the work, and that in pursuance of such unlawful confederation the county engineer, who is made a party defendant, has corruptly and without cause refused the plaintiff’s demand that he certify to the county auditor the completion of the ditch according to contract. It is still further charged that as part of said alleged conspiracy the supervisors of said county wrongfully agreed that, notwithstanding any certification which might be made by the engineer of the entire performance of the contract, they would not perform the duty imposed upon them by law to order the issuance of warrants for the payment due to the plaintiff. It is also charged that the objections made before the board of supervisors to the payment of
The defendants concede the execution of the contract with the plaintiff, and the performance by the latter of a large amount of work in the construction of the ditch, and the payment thereof of at least eighty percent of the stipulated price. They deny that the work has been completed according to contract, or that plaintiff is entitled to demand or receive the remainder of the contract price, or any part thereof. They also deny all charges of conspiracy and wrongdoing. They further aver that the plaintiff’s work; so far as done, has been performed in a negligent and unskillful manner; that the width of the berm provided for in the contract has not been left as agreed upon, with the result that much of the dirt and sods thrown out of the ditch have fallen or been washed by the rains back into the excavation; that the slope of the banks of the ditch has been made much steeper than was agreed upon; that in many places ■ the ditch as made is less in cross section than is called for by the contract, and overhanging sods and dirt have not been removed; that the bottom of the ditch has been left in rough and irregular condition, and pot in accordance with the grades, plans, and specifications
The engineer, answering separately, takes issue upon the allegations of the petition as against himself, and denies the completion of the work, setting out numerous details with respect to which the plaintiff is alleged to have failed in the due performance of its contract. A very large amount of testimony was heard, and at the close of the trial the court found the plaintiff not entitled to the relief prayed for, and dismissed the petition.
In nearly all essential particulars, this case is quite parallel in fact and circumstance with that of Littell v. Webster County, reported in 152 Iowa, 206, and reference thereto will sufficiently disclose the view taken by this court of the law applicable to issues of this nature. There is no occasion, therefore, for us to repeat the discussion there found, or to review again the authorities cited by counsel.
Such being our view, there is no occasion to dwell upon the many other propositions advanced by the appellant, and supported by the elaborate and well-prepared briefs of counsel. While we are agreed that the decree below mnst be affirmed, in so far as it denies the writ of mandamus, we are still disposed to follow the precedent afforded by our order in Littell v. Webster County, 152 Iowa, 206, and remand the case to the court below, with right to the parties to amend their pleadings, if so advised, and for the trial by appropriate methods of the question whether plaintiff is entitled to recover upon its contract, cr upon quantum meruit, any part or all of the agreed compensation which, it is conceded, is still withheld by the defendants. As thus modified, the decree of the district court is affirmed and the cause remanded.