135 Minn. 5 | Minn. | 1916
The county of Aitkin let the construction of Drainage Ditch No. 21, with necessary culverts and roadways, to the defendant D. A. Foley & Company, a corporation. Defendant relet the same work to plaintiff at a lower price per yard for the excavation, but at the same price for the other portions of the undertaking. The plans and specifications called for the excavation of 158,545.06 cubic yards. After the work was started the engineer in charge requested plaintiff to make the ditch deeper than called for by the plans and specifications. Plaintiff complied. This necessitated an additional excavation of 53,444.6 cubic yards. The stat
Plaintiff’s contract provided that he should “excavate and complete according to -the plans and specifications on file in the office of the county auditor the certain county ditch (describing it). Also all laterals as shown by the plans on file. The first party (plaintiff) also agrees to furnish all culverts required by said plans and all bridge materials for necessary bridges * * * and complete said work as required by the engineer * * *. The plans and specifications are made a part of this agreement by reference thereto and all work shall bo done and completed in accordance with the instructions of the engineer * * *. In consideration for the faithful performance of his part of this contract by the first party the second party (defendant) will pay the sum of nine and three-fourths cents (9 %c) per cubic yard for excavation and for excavation of extra yardage over and above the estimate, required to be done by the engineer, the sum of nine and one-half cents per cubic yard.”
Plaintiff contends that the contract is explicit and unambiguous upon the proposition that for all work which the engineer directs him to do he is to be paid the specified prices. Defendant, on the other hand, claims that the contract must be so construed that its liability to pay is limited to the work called for by the plans and specifications and that the engineer had no authority to order any additional amount, except under the provision of section 5526, G. S. 1913, which must be read into the contract.
In construing a contract, the situation of the parties and the circumstances surrounding its execution are to be kept in mind. Plaintiff was a subcontractor. The work was public drainage, and the conduct thereof under statutory control. Therefore it must be assumed that the parties hereto contracted so as to conform to the terms of defendant’s contract
The county auditor never consented to any change in the plans or specifications; therefore, the extra work done was. not such as the engineer could legally require plaintiff to perform. But, this notwithstanding, the county paid defendant $3,152.93 therefor. Defendant expended no time, effort or money, either in procuring the engineer to order the extra work, or in the' doing thereof. Indeed, it claims to have had no knowledge thereof until it was done. There is no doubt that plaintiff acted in good faith in following the directions of the engineer, and so did the latter in ordering the change which necessitated the extra work. The testimony is convincing that the extra depth to which the engineer
Upon the facts found the conclusion of law should be modified so as to allow plaintiff $632.77 and interest, instead of $32.52.
The order is reversed and the cause remanded with directions to modify the conclusion of law in conformity herewith.