98 Kan. 94 | Kan. | 1916
The opinion of the court was delivered by
The board of county commissioners of Barton county contracted with the Jenkins Construction Company, composed of E. N. Jenkins and George E. Sheldon, to build and repair seven bridges which had been destroyed or injured by the floods of 1912. The construction company furnished a bond for the faithful performance of the contract, signed by the Western Casualty & Guaranty Insurance Company as surety. The construction company failed to carry out its contract, and persons who furnished labor and materials to the construction company brought six separate suits against the construction company and its surety. . As some money was still due to the construction company for work done upon the completed bridges, the board was made a defendant in each of the suits. For the purposes of the trial, all the cases were consolidated and’ tried as a single action without a jury. The court made findings of the amount; due to each plaintiff, and gave judgment for the amounts against the construction company and the guaranty company.
It appears that three of the bridges, viz., the Drew, Vierthaler and Straub, were unfinished when the default occurred, and the principal dispute between the parties herein is in respect to the kind of abutments agreed to be built for the
The guaranty company contends that the contract is entire, that the drawings or plans with reference to abutments had no application to the Straub bridge, and that the meaning of the term “rebuilt,” used in the specifications, meant to replace the abutments in the form and dimensions of the old ones, and that, therefore, the requirement of wing walls was without justification. The contract in respect to the abutments was plain enough as to the material to be used, but was ambiguous as to the size and form of the same. The Straub bridge was to be built according to the plans and specifications annexed to the contract, and as the only plans made and considered by the parties provided for wing walls the court, we think, was warranted in holding that the bridge was to be rebuilt with wing walls.
The contract appears to have been an entirety, but as between the different parties contending here, it is deemed unimportant whether it is to be regarded as entire or severable. The whole work was to be done for $13,294, and completed at a stated time. It was stipulated that bids must cover the work as a whole, and none of the conditions of the contract indicate that the contractor could be relieved from the obligar tions of the agreement by anything short of full performance of the entire work. The schedule attached, stating prices for each piece of work, was probably intended as a basis for carrying out the provision that eighty-five per cent of the cost price should be paid to the contractor as each piece of work was fully completed. The contract, although ambiguous, was valid, and the ambiguity was cleared up to some extent by extrinsic circumstances, such as the acts and declarations of the parties. Where there is ambiguity in a written agreement parol evidence may be received, not to contradict the writing but to aid in its interpretation. To that end, the circumstances under which the contract was made and the practical construction put upon it by the parties themselves may be received. (Baxter Springs v. Light Co., 64.Kan. 591, 68 Pac. 63; Mayberry v. Beck, 71 Kan. 609, 81 Pac. 191; Parks v.
The court charged back against the board certain items expended by it in the completion of the contract. These findings are challenged on a cross-appeal which has been taken by the board. When the default occurred and the guaranty company declined to complete the contract the board., employed the Missouri Valley Bridge & Iron Company to finish the work. It agreed to give that company the actual cost with ten per cent added for profit. In arriving at actual cost the customary method was adopted of taking the actual cost of material and labor and general expenses and upon the whole of these adding ten per cent for profit. A dispute has arisen as to what may be properly tréated as general expenses. It seems to be a common practice to allow a certain per cent of the actual cost of material and labor to cover a great variety and number of things incidental to the work which can not well be enumerated and which are called general expenses. It is stated that fifteen per cent was allowed by the board for such expenses. No reason is seen why a reasonable allowance of this kind, based on builders’ experience, may not be made, and some of the items disallowed were properly chargeable as general expenses. On the work done on the Straub bridge the court disallowed items amounting to $645.37, and on the Vierthaler bridge $213.48. Among these items are charges for tools, and the use of tools, expense of bond, insurance, repairs on machinery, freight, storage, blacksmithing, and for some materials such as gasoline, hardware and the like. There is testimony in the case that these things were necessary and reasonable in the
Another complaint is based upon the holding that the board was not entitled to recover $287, the cost of reflooring the Drew bridge. It appears that work was suspended úpon the bridges by the construction company during the winter months, and about the middle of March it was resumed on the suggestion of .the board, and the work was prosecuted from that time on with the approval of the inspector employed by the board. The concrete, which appears to have been of good material and properly mixed, was laid on the floor of the Drew bridge on March 27. At that time the temperature was moderate and suitable for such work, but during the night following the laying of the floor there was a sudden change of temperature, which resulted in freezing the concrete so that it disintegrated, and another floor was required to be laid, which was done by the board at an expense of $287. The only fault in the floor first laid was due to the change of temperature and the freezing which disintegrated the concrete. The provisions of the contract required the construction company to make a good, first-class floor, to the satisfaction of the board, and payment was not to be made until the work was completed and had been inspected and approved by the board. The question arises, Who must bear the loss resulting from the change of temperature ? There is no claim that the construction company questioned the propriety of laying the floor so early in the season, and while it was done with the consent of the board and its inspector, there was no compulsion upon the company
In 30 A. & E. Encycl. of L. 1249, it is said:
“A contractor who agrees under an entire contract to construct an entire work is not excused from the full performance of his contract by the destruction of the work when partly completed, but must himself bear the loss, though such destruction is caused by unavoidable accident; and not only in such a case is he denied a recovery of compensation for the partly completed work, but the builder may recover from him partial payments made as the work progressed, and may maintain an action for damages against the contractor for failure to perform his contract. This rule has chiefly been announced where the structure was destroyed before completion by fire, but is equally applicable where the structure falls by reason of latent defects in the soil, or is destroyed by lightning, by a freshet, or by a storm.”
If, under the contract, the board had been given the power to fix the time when the work should be done, and had required the construction company, against its judgment, to do it at an unseasonable time, the board would have been responsible for resulting injury, but no such control was vested in the board, and the mere fact that the inspector employed by the board was present and consented that the work should go on did not shift to the board the risk of a change of temperature or. loss resulting from the freezing of the concrete. (Ryan v. Bay City, 160 Mich. 559, 125 N. W. 398.)
In Meriwether v. Lowndes County, 89 Ala. 362, 7 South. 198, a contract was made by a county with another to maintain a bridge and keep it in good repair for a period of five years. During this period the bridge was destroyed by an extraordi
“There is a long line of eases, both in England and this country, which settle the proposition, that an unconditional express covenant to repair, or keep in repair, is equivalent to a covenant to rebuild, ‘and binds the covenantor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevitable accident, or the act of a stranger’; and that, while an act of God will excuse the nonperformance of a duty created by law, it will not excuse a duty created by contract.” (p. 366.)
(Clark v. Collier, 100 Cal. 256, 34 Pac. 677; School District No. 1 v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Huyett & Smith Co. v. Edison Co., 167 Ill. 233, 47 N. E. 384, 59 Am. St. Rep. 272, and Note; Milske v. Steiner Mantel Co., 103 Md. 235, 63 Atl. 471, 5 L. R. A., n. s., 1105, and Note, 115 Am. St. Rep. 354; Mitchell v. Hancock Co., 91 Miss. 414, 45 South. 571, 15 L. R. A., n. s., 833, and Note; Wm. A. Stover et al. v. James Allen et al., 48 Tenn. 486; 6 Cyc. 64; 6 R. C. L. 308, § 295.)
The consent of the board that the work should proceed at the time the floor was laid did not change the obligations of the contract nor make the board responsible for unforeseen losses that might have been provided against in the contract, but were not. No act of the board brought to the attention of the court relieves the construction company from completing its work and turning over the bridge in good condition in accordance with the absolute requirements of the contract. The board was therefore entitled to recover $287, the expense of relaying the floor.
The judgment will be modified, therefore, by adding to the award, made in favor of the board, the items for general expenses and the profit thereon, amounting to $876.48, and the $287 paid for the reflooring of the Drew bridge; and so modified, the judgment is affirmed.