*1 Highway Sandy Company, Plaintiff-Appellant, v. State Com- Hites (2d) 828. mission, Defendant-Appellant. S. W. One, April 18, 1941. Division *2 Sebree, Hardy plaintiff-appellant. Sebree & Shook and David B. *3 Fields, & Stigall Balph Louis V. Bradshaw M. Eubanks. ' n n
defendant-appellant. ... HYDE, C. This is an action in seeking four counts to recover the value of additional pavement, over the 'amount *4 paid by State, for the on highway four of sections work. State On (for Count 1 E) $5376.17 on Section (for and Count 2 $6232.79 on F), Section jury the for defendant; found (on on Count Section GO, jury the plaintiff found for $4120.62; 4 (on and on Count H) jury plaintiff Section the found for parties- for-$2491.95. Both ' " n ' appealed have the judgment from entered. The work was done under a written contract with plans written and" specifications, on awarded bids received public' after notice in accordance with Section R. (10 S. 1929 Ann., Mo. Stat. 6900). Plaintiff concedes that it paid has been all amounts due it under the contract. “Plaintiff’s damages action is for breach,of implied the warranty sufficiency of specifications by ’’ Highway the Commission. The assignments '('and error points of authorities) go in the briefs question to the of whether or not may such an action be maintained under the of, circumstances this n " " - - case. Plaintiff’s provided contract it should construct a concrete pavement wide, feet which wóuld 9 be thick inches at edges the-' 7 inches the rest center) and over of the thick (for feet towards two by gravel the State. Plain- was furnished All sand dimensions. bid) per square amount price (the fixed of his a paid was to be
tiff elevations fixed the The yard pavement constructed. of be constructed. pavement the grade which of the following italics) provisions: (our The contract contained Description. portion That “Subgrade Preparation. 1-59. surfacing hereby is is placed which to be graded upon roadbed subgrade be constructed so designated subgrade. shall The density throughout width and its entire will uniform that it be plans or line, grade on the and cross-section shown will conform Engineer. by . . as established ... “1-60C. Rollers ‘1 subgrade cement preparing for Portland
The roller used light roller pavement well-propelled or shall be concrete course base uniform weighing (5) more than five tons will insure not material. subgrade eliminate clods and loose compaction of the and will objectionable hauling forming results ruts “Where or other subgrade reshape and re-roll irregularities, Contractor shall surfacing placed. before is Finishing. subgrade
“1-60D. After the for concrete by an brought shape been it shall true the use compacted has be machine, approved subgrade after be tested rolling it shall template riding means on the side mixer. ahead forms template must Such shall be furnished the Contractor and have rigid built to edge, construction, must be of and must be continuous plans. templates shown on Scratch conform the cross-section grade not is spikes permitted. teeth will be the sub with Or If required, proper elevation, material shall be added or removed as satisfactorily incorporated material is added it be and if shall adding removing material, compacting compacted. process The or irregularities testing all repeated be until are removed. shall forming shaping Extreme care be taken in the crown shall subgrade finally so as to sure that when finished specified thickness concrete is obtained. subgrade “Immediately placed, the true before subgrade or approved template means prepared shall planer rolling planer on the forms behind the mixer. shall be being adjusted give capable of so as to the exact elevation and cross at all times. those areas found section On excavating shall be high, planing to be too done until *5 the reached, deposited material shall depth surplus and the be on elevation areas be below true shoulder. Those found integral prop- the slab part shall with concrete as an be filled of er. .. . . “Portland Concrete Pavement. . . Cement approved au steel, of Forms shall be made of “15-5. Forms. Side and the inches, eight (8) at width lease section, with base of edge. height pavement at equal shall be to the thickness of they rest Setting The forms shall be set so “B. Forms. thoroughly compacted length firmly throughout upon their entire (%) inch grade subgrade. Any sub which is more than one-half grade brought grade line be the established at the shall below form by required pavement, width, for a outside the area sufficient thoroughly rolled as adequately, and be support forms shall prepared All specified in 1-62A. for forms shall Section by Engineer. If finished by grader type approved a form grade grader (%) than cutting with a form is more after one-half again low, refilled, rerolled, inch it shall be cut to the satisfactory founda- grade. operation repeated shall be until This Any less than tion for the forms is obtained. variations which are (%) grade, are shall inch low and all above variations one-half be brought grade. . . . true “Compensation. 15-22. Method of Measurement. Pavement shall plans. be constructed to the dimensions shown on the resurfacing, “The pavement, except pavement thickness of shall lengths be determined pavement, from of cores taken from the lengths corresponding edge from of cores and external measure- ments. ... pavement by “Due to the fact that sections thickness deficient than (%) removed, edge more inch will all cores or meas- one-half by specified than the
urements shorter thickness more than one-half (%) inch determining average shall not be considered thick- pavement. ness of . . Payment. average any
“15-23. Basis of If one thickness of (1,000) thousand foot section pavement, as determined Section 15-22, is less than plans by the thickness shown (%) one-half less, price inch or the unit payment used shall bear the same thereof ratio price square contract unit as average actually built square bears to the the thickness pavement specified plans. on the of. n “The price Contractor’s unit contract for Portland cement con- crete will be considered as compensation all ma- full terials other entered into items the constmction pavement, compensation no additional any will be allowed excess thick- ness. ,. “If aggregates cement are Commission, and/or the,Contractor charged shall be with all materials used extra thick- any ness section which is in specified excess of the thickness as (cid:127) indicated lengths edge actual core Quantities measurements.
of materials used in such extra thickness shall be derived from cubic
«960 during yards concrete, construction using’ the same factors used of ’’ of the work. highway High- of on Plaintiff’s contract covered miles County way (from Highway Henry line) No. 71 No. 35 east the County. into four of about Cass The work was divided sections plaintiff on each. In fall commenced work miles the of 4% Highway through E paved Section F and east Section com- closing pleting half work for the this of the before down winter. dry good ground The were and the weather was most conditions In work spring 1937, plaintiff the fall. the commenced on Section through Henry County H to paved G and west Section the line com- pleting three bad the work. There was about weeks of weather there spring. It was was overthickness of determined pavement made, each section for which deduction from was settlement, gravel value contract of State sand and therein, $1717.73; used which was as follows: E. .326 inch- Section $1992.80; $1598.83; F .392 inch- G .265 inch- Section Section Section IT .145 inch- Plaintiff $839.95. seeks recover these amounts with- (over inches) held State and also value of the overthick pavement paid nothing. for which it was concedes is Plaintiff that it paid not entitled to this under the contract and that has been all provided paid. proposition that the contract it should Plaintiff’s Highway legally that “The responsible Commission is for the excess plans because it and furnished the plaintiff faithfully completing pavement; followed in faithfully when so furnished followed eontractee contractor, warranty implied sufficiency there is an of the of such plans specifications for purpose obliged the owner pay accept result, for the may whatever it be.” Defendant claimed that- to improper preparation overthickness was of the due subgrade (earth leaving pavement) foundation holes and ruts There conflicting it. was much However, evidence on this issue. take, of the view accept plaintiff’s because we we will version facts. up plant machinery
Plaintiff set its in September, 1936. Its superintendent job on the L. Clyde was E. Shafer. Its foreman was project engineer Burris. The Highway for the State Commission Thornburg. was E. E. The slab inspector was Lotspeich. O. A. The work project engineer grade set the stakes, was to and line usually he this did some distance paving advance of the machinery. work The slab inspector and his assistant was to. see that the constructed speci- customary fications. It is inspector for the slab to furnish the con- tractor with a calculation of the ordinates, theoretical and that was done in this case. theoretical represent ordinates depth from plane between tops forms, side below which the pave-
96i “the measurements (Otherwise stated constructed. ment is to be constructed.”) to be Before the slab was to which State grading machinery, Mr. Company set the Hites employees of *7 on Section Mr. Burris the theoretical handed to ordinates Lotspeieh machinery subgrading F, that Burris and Shafer set the suggested and settings. He told them specified an inch below these one-fourth of customarily full inch thickness: order to insure it was done subgrading Shafer, agreed and Redman that the Burris, Lotspeieh theoretical machinery one-eighth of an inch below the set machinery begun set on Section The was so and work was ordinates. finding paved F. about a half mile the lineal feet Plaintiff and one-eighth of running per' batch, settings raised the pavement short by'the is, settings inch, up prescribed specifications, to the subgrading completed F and all E ma- Section of Section with the chinery change specified. (Lotspeieh as that no was set claimed such during work.) begun made the fall spring When the work was the machinery H, on G and the on ordi- Sections was set the theoretical money,” nates the report showing(cid:127) or “on because overthickness the on the first two sections had been After paving received. about one mile, setting the was raised inch to above the theoretical l/8th l/8th highway engineers they When this, ordinates. the learned ordered paving stopped setting until the was lowered the theoretical ordi- nates. manner in paving first, The which work was done was
scarify roadbed; an old oiled then, surface the trench in which the roughed was to be laid was plows out with the road grading machinery. roadway Then graded was for the steel side forms. set, When the were subgrading forms a operated, was machine running on wheels on these track, throwing side forms aas dirt on the shoulders of roadway. subgrading brought This machine the subgrade to an approximation of required depth, and the roadway required by was rolled as awith five-ton roller. operated Plaintiff mixing its concrete machine between the upon caterpillar forms large treads. This heavy was a machine. brought Materials’ were mixing by to this machine trucks which graded traveled- over the roadbed and subgrading crossed over the n by tracks, machine bridge which made a over it. The trucks fre- quently made ruts and holes in subgrade. These were filled with earth tamped before the mixing was laid. Behind the machine, it, and attached to there planer was and check template, which moved, through mixer, attachments to the when mixer moved. planer mixing behind the machine did cutting final subgrade. The check template, it, back of did cutting. no It was constructed grade accordance with the as shown and specifications, and ran on the side pur- forms. “The (cid:127) pose check template is to check depth subgrade. grade get up would and ride high was the wheels When the . . you low grade low, was could see it was When the up. off the forms. mixing' machine and mixed con- delivered beneath the blade.” The which contained along large boom means of bucket steel crete concrete, upon with much force heavy dropped amount of subgrade, it subgrade. deposited After the through brought a concrete place into to surface was worked finishing that bear finishing machine. machine has two surfaces This concrete, screeds, known front screed and the upon push tendency surge behind these up back The concrete has screed. they pass screeds as over it. judgment
Plaintiff claims that it was not allowed its own to use get pavement methods to which would be seven inches its own setting machinery thick, but that had to work on plaintiff’s superintendent State. As to the effect of this said: “ n controlling thickness, are the factor for if material Our forms *8 very dry, plastic. (the workable pavement) or not or It could be on,account settlement, down, thick of because as the forms went your surface, with to finished it would have the same effect relation raising your subgrade. smoothly subgrade ... If the pre pared, depressions, your and no and if template money, is set on the inches, time, your at sink, at that and if forms do not if the screed finishing machine was set to elevation determined engineers, things assumed, if all those were there would still be no way determining get, of what we would get whether we would thin pavement, pavement, thick pavement. or correct You could deter mine the within half an I thickness inch but would doubt if it could be a quarter determined within of ah setting inch. The subgrade Highway Department say machine is what I caused the over- pavement. you go thick ... If hill, pouring down concrete down hill, naturally the concrete is moist and flows, that would tend you to make go the concrete thinner. But if up hill, naturally the . n . back, concrete run would and that would make it thicker. . A depressions contractor fill the earth, would with tamp it, in stead putting expensive of in the During concrete. period of exces subgrade sive rainfall soft, becomes and the trucks cause ruts. The filling contractor pays up the holes and not the State. . . . Now, you exactly could build the surface to the cross-section shown plans, you drag your on the could trail grader through all the sub. grade exactly -to the cross-section shown plans, on the dump the it, you exactly concrete on can’t tell what it will be after it is dumped on it. plans specify The a certain of pavement, specifications go but the say further subgrade that our machine subgrade be set so as cut the depth. certain you When a. cut the depth, to that that doesn’t your insure thickness of pavement. ... It doesn’t insure the specified results because quality of material and many variables. The there are so workability have some on this. State furnished would effect and mixed and we cement gravel on this work furnished the sand and the State in the material is under the control The variation of it. they amount water Highway because determine the Department workability of the concrete. concrete, plasticity we in the use heavy weight concrete; dumping . . . The third variable is this soil, it is degree, weight to a certain when this hits of it would soil, possibly right where the force displace bound We were depression, place. strike would be a or low ... it there ’1 change settings powerless to our to conform to the' weather. setting machinery, The reason for control inspector, to defendant’s was as follows: dig deep put “You a trench inches inches can’t 6-7/8 exactly -. it. . . We don’t know what thickness
.concrete pavement, exactly money, if we if it on the we know that but do average going, get have it than of 7 less 7 inches we are not (Also engineer said.) you brought project inches. After have you specified plans, the elevation in the and after bring top specified plans, the elevation y.ou consistently get pavement, will not seven inches of but it will average seven inches.”
Plaintiff, quoting from an in 88 A. L. R. l. annotation c. says the applicable rule lawof is as follows: , every “The settled, practically rule has become well American jurisdiction involved, the matter has been that a construc- tion contractor who has followed contractee, engineer, proved his and which have architect or
to be insufficient, responsible defective or will not to the contractee *9 damage loss or completed which results —at least after work is —solely from, the pirns specifications, or or defective insufficient any negligence the absence of part, any-express on the contractor’s or warranty by being him to their as or free from sufficient defects.” .(Our italics.) holding cites cases a paid that contractor should be Plaintiff work, reconstruction, his bridge extra work of a where fell fo.r plans fundamentally . (Penn Bridge because were defective Co. City Orleans, 222 737); New where part building of a v. Fed. (cid:127)fell plans specifications (Bently State, because .defects and v. 73 416, 338); Wis. N. W. a where reservoir plans leaked because 41 watertight (Filbert City were make it insufficient-to v. of Philadel phia, 530, 545) ; 181 Pa. 37 Atl. ship according where a plans built to did not to the standards of the Bureau Shipping American conform .(Louisiana Shipbuilding Bing (La.), 364); Co. v. 104 So. and a where pipe line, because of plans, carry deficiencies would not pressure. intended steam of Nebraska v. Casualty Commercial [State (Neb.), v. Co. 248 N. W. Plaintiff also cites United States 807.] Spearin, 166, Ed. where a Sup. S. 63 L. United U. Ct. dry government ‘building dock, required a contract, States dry building large work could or relocation of sewer before dock be done. and performed plans The sewer work was specifications but the sewer was insufficient because of obstruction with another sewer which it connected. It held that was responsibility government, for failure “the in- was because character, dimensions, sertion of prescribing the articles lo- and imported warranty cation the sewer specifications that if the were ’’ ‘ complied with, the adequate; sewer would be and implied that' ‘this warranty general is not requiring overcome clauses the con- ’’ tractor to site, many examine the All cases, etc. of these and others cited, where, although are insufficient, cases the structure was contractor had build,- nevertheless built the structure he contracted to and was not compensation he to be denied because it was insufficient for the party’s purpose, other insufficiency when such was due such other party’s fault. When the specified contract is to build structure, according to plans, course, another’s the contractor does not insure that such plans specifications are sufficient to obtain the sought, result paid he should be agreed if he did what he to do.
This is not case of an insufficient structure. On the con trary, it was somewhat better than required by plans specifications. question here is whether the contractor should paid for the excess thickness which made pavement slightly better plans than the required. says Plaintiff that it should entitled to recover the cost of (not this extra thickness under the specifically contract which provided that “no additional compensation will any be allowed for thickness”) excess but dam ages on a arising “by cause of action virtue the defendant’s breach of the implied warranty sufficiency specifica tions, by defendant, accomplish specified result required by contract,” namely pavement seven inches thick. — Therefore, the decisive issue is: any Can there be such implied warranty under the circumstances of this ease under the terms of the contract involved? We not, think because-the reasonable con- struction of this appears contract to us to be plainly provides that it there not be. In other words, clearly means that specifications will necessarily produce exactly seven inches' of thickness under actual conditions of construction. Instead, it leaves it to the contractor prepare subgráde that will hold the thickness any seven'inches or to fill *10 additional space with concrete'at his cost. only Not does it state that “no additional compensation will be any allowed for excess says thickness” but also that, when the grading completed, is “those areas found to be below the true sub- grade elevation shall be filled with concrete as integral part'of accepted to be pavement was Moreover, it said that proper.” slab less,” inch by or plans one-half shown on the than ‘-‘less price unit that the contractor’s proportionately; for' and paid and “ for all materials compensation full per square was to be considered as pavement.” entering of the into the construction and other items a construing the contract as Considering provisions and all of these should'provide whole, the contractor we think its clear intent was that required elevation a conform hold the that would to and (and it) cost the concrete provide or at his own not be sink below is well illus any space. to fill low or think the situation sunken We 465, 188, by 97 S. W. Mfg. Heinz, App. trated v. 120 Mo. Beattie Co. to plaintiff, also cited an exhibition booth built where to upon which it was and would not fit floor recovery be placed. said, allowing for extra work court there necessary words, to . . make it fit: “In defendants other agreed (by plans) requisite such to for plaintiff furnish the surface contract, build plain provisions on.” It is from the herein- this out, plaintiff agreed prepare above set that herein furnish own Therefore, surface en plaintiff “to on.” not be build warranty titled to recover (on implied cost excess thickness or otherwise) single he simple the one that we hold reason plain definitely contracted terms specifically he should be; contrary agreed but price build fixed at the either with earth (to (as a certain point) and with thick as -the condition subgrade required it) to the elevations required by specifications. by plaintiff, None of the eases cited find, none we can hold that a provision there can be an implied specific provision contract “There can be exactly no opposite to and in therein. All implied covenants in authority direct conflict with contract in relation to is to the contrary. a definite any [3] matter that specifically covered the written terms contract itself.” 769, Am. Jur. sec. 239 be and cases “There can [12 cited.] implication no against the express terms of the contract.” C. [17 J. 780, S. sec. It is also our view on principle that there would 328.] be no such implication, against overcoming specific definite and contract provisions. merely Instead of adding impli a provision cation, that clearly would writing entirely new different contract, with contrary meaning. All of the law of contracts against doing courts that. We hold that it should not done. Plaintiff eites another class of specifications, upon eases where the which ivas rely, positively misrepresented contractor entitled to conditions unknown to the contractor. In Smith, United v. States U. 11, S. 41 Sup. Ct. L. Ed. there contract excavate a ship canal a certain depth. width and “The material to be removed was specified gravel, sand, to consist ‘of and boul ders;’.” year but more than a later “there was discovered natural
966 ’’ The of excavation. boundaries limestone rock within the
bed of excavation. of this the extra cost allowed to recover contractor was 609, there was york, 118 N. E. Likewise, City in Faber v. of New of foundations for construction specifications in mistake incorrectly shown bridge position of bed rock was piers so that the actually it was. than eight farther below the surface to be feet nine of removal. difference in cost recover the The contractor was allowed to warranty as to constituted cases hold that the These are cases removed. Similar material be position kind or of to (where misrepre- (2d) 40 deliberate City Farley, Lima v. 7 Fed. of City v. ; Pitt Co. alleged) Construction sentation to defraud was County of Contracting v. Alliance, (2d) 28; 12 Montrose Co. Fed. States, v. Westchester, (2d) 841; and Hollerback United 80 Fed. cited 553, 58 L. Ed. also 165, 171, Sup. 233 U. S. Ct. case. Here However, nothing misrepresented in this plaintiff. was soil, any particular kind of drawn for specifications were not conditions, nothing unexpected was weather or other unusual any- president “We didn’t discover encountered. Plaintiff’s said: know before.” thing physical condition that we didn’t about the previous knew from Therefore, point. are not Plaintiff these cases to make experience the “variables” to be considered order pavement inches. hold the to seven extra argues produced Plaintiff further that defendant such interference with and control and direction “ordinarily contract; performance of the and that contractor’s responsible contractor is not for defects caused acts or orders ’’ during Quoting work. from Mannella progress the owner [ City Pittsburgh (Pa.), (2d) Plaintiff cites v. 6 Atl. also 70.] Borough City York, v. New 93 N. E. where Construction Co. disagreement City’s en there ivas between contractor and the gineer engineer meaning required over the of the contract. The that (in construction) expensive more material accordance with his only (instead parts on all certain to the be used the work upheld), which the construction of the contractor which the court contractor was allowed to recover. Plaintiff also cites Litchfield City York, N. Y. Supp. Construction Co. v. of New 450. There City’s engineer required mixing of concrete at cost con extra trary provided specifications. the manner In both these to specifically required cases contractor was and did do some do thing require. provide additional the contract did for or However, analysis, setting in the final all that here was machinery build exact elevation would prescribed by specifications. subgrade settled, If the the pavement settled, would be thick. If the too forms (Some it, be thin. spring, would in the was too thin and had be (cid:127) removed.) enough, it would thick followed plaintiff To sure fall for its setting inch lower suggestion of inspector’s l/8th made thing was ever it only to do that. The work. It did not have when, spring,, set money” to set back “on the do was did not have take high. contract, the State inch Under l/8th chance on (and perhaps delay from of thin reconstruction *12 point The finding it) be built. by allowing high subgrade of not a to changed what which is that there was no interference with the work contrary or anything additional required, required contract or plaintiff let specifications. Instead, to its a refusal to there was change by subgrade above the elevations building contract specified. allowing compensa- We extra ground can see in this for no tion, any event; in for when contract said there should be none or holding representatives’ there was a defendant’s breach demands compliance. per- for exact Our view of the evidence is that over variables, plaintiff’s made due to and formance was the so-called preparation subgrade them, requiring in face of and not to any be agreed to built to the elevation. not find We do be,to a substantial evidence to show cause for which defendant could any blame. To attribute the extra thickness to other cause be would a speculation. to base verdict on surmise and Fiirthermore, contract, dealing public we are here awith the law a under of this such contract must be State definite specific as what to compensation to is authorized be done and only received. This contract could be made with the accordance granted authority Legislature. 8119, 8115, 8116 and [Secs. R. 10. Ann., S. Mo. inspectors Stat. and 6903.] engineers authority vary had specifically no terms it its so Moreover, they required any stated. change what not a was respect but compliance may be, literal with It plaintiff it. as intimates, that the provisions contract exacting too and that it are would be more Highway reasonable for the provide Commission to payment fot inch overthickness, accepted (with it pro 1/2 portional deduction) underthickness; not more than inch or at % it 'least charge that should not for its material that used .to extent. However, that question Legislature is a which the authorized the Highway decide, Commission to discretion, over which we cannot assume present control. It saw fit to offer the form of con tract is prohibited neither illegal. nor Its effect was require the contractor to getting choose between contract elevation in such condition that it would not sink when concrete put is it, any or else to fill space sunken with concrete at his cost. This meaning plain was too to be misunderstood. Plaintiff fit accept saw offer, this whether profitably or not not we do know. We. assume it would bid to the risks of all the stated variables which were well known to it. If not, it did we cannot make the contract over may so that plaintiff compensation for,something receive charge. can we Neither make no agreed to specifically for which it produce would warranty that the implied that it hold contemplated plainly exactly thick when inches seven provided specifically average less more and both that it would either, both, or situations. done in was to be what com denies “which finally provision that argued It is charges the con for excess thickness pensation extra, is a thickness” used all materials state-furnished tractor with unenforceable; that this true therefore, and, void and penalty caused damages because defendant liquidated if it considered
even In cannot be sustained. contract. This contention the breach of the by defendant contract caused no breach of the place, the first there was faithfully theory fully and it was Plaintiff’s that or otherwise. here, breach, was not a but Overperformance, as shown performed. In contract, parties. was, contemplated both as we construe the penalty provision either we construe as place, the second cannot something paid provision will re not be *13 any pay when to be used quiring material used owner, being option. at his purpose use contractor such “only penalty According plaintiff’s definition, there is where own agreement pay plainly fixed without is sums reasonable relation any agreement probable damages.” Certainly, pay purpose value of used defendant’s materials for the stated does not fit this definition. Two,
The judgment, affirmed; as to One and as to Counts Counts Bradley Four, Dalton, CC., Three it is reversed. concur. PER foregoing opinion Hyde, C., CURIAM :(cid:127) The adopted opinion judges All of the court. concur. at the relation Relator, v. State Nevins, Missouri Natalie Hughes William C. Judges al., Louis Court of St. et Appeals. (2d) S. W. 836. One, April 18,
Division 1941.