151 Minn. 441 | Minn. | 1922
Lead Opinion
While that action was pending defendant proposed to plaintiff that they together go to the legislature and ask the passage of an act authorizing payment for the full amount of the extra work done and then ask the county to make payment accordingly. Plaintiff refused and proceeded with his action with the result above stated. Defendant went to the legislature at its session in 1917, and at some expense for attorney’s fees procured the passage of the act desired. The county board, on advice that the act was unconstitutional, refused to pay the claim. On appeal the board was reversed and the full amount of the claim for extra work was allowed, namely, $4,307.13. Defendant received this amount and plaintiff then brought this action to recover his proportion of the amount defendant had received. On a former appeal, Seastrand v. D. A. Foley & Co. 144 Minn. 239, 175 N. W. 117, it was held that such an action will lie.
We find difficulty, however, in approving the mathematical calculation of the trial court. The court held that plaintiff was entitled to 95/130 of the $4,307.13 recovered by defendant under the act of 1917. This was erroneous. Plaintiff was entitled to receive 95/130 of the amount received for extra work. But he had already received about half of the amount due him for the extra excavation. He had received all of the money paid by the county. Defendant had received none. Clearly then plaintiff was not entitled to 95/130 of the balance still unpaid by the county. The proper fraction, as we view the case, was 2436.75/4307.13. From the amount of $4,307.13 recovered by defendant from the county must be deducted, under the ruling of the court, the expense incurred, amounting to $905.62. The balance must be divided by plaintiff and defendant in the same proportion as they would have shared the $4,307.13 if defendant had incurred no expense; that is, plaintiff should have 2436.75/4307.13 of the amount and defendant 1870.38/4307.13 of the amount.
The rule of law applied by the trial court is affirmed and the case is remanded for computation in accordance with this opinion.
So modified.
Dissenting Opinion
(dissenting).
I dissent. The excavation called for by the contract with the county was 158,545.06 cubic yards. The engineer ordered plaintiff, the subcontractor under defendant, to excavate 53,444.6 yards additional; which he did. He sued defendant for this extra excavation at 9|- cents per cubic yard, the contract price; also for $512.44 extra for bridge and roadwork. Although defendant denied all knowledge of and liability for the extra work, it collected from the county $3,152.93 therefor, being the 10 per cent additional to the contract price which the engineer was authorized to order extra under section 5526, G-. S. 1913, and $600 which the county took out of some
Viewing the situation from another angle we may arrive at the same result. The money was appropriated so that the one who did the work should be paid. The size of the appropriation indicates that it was the intention that he should be paid the full contract price. This was 9-3,- cents per yard which defendant had agreed to pay plaintiff for extra excavation. At this rate there was due him $2,437.75. . He has long ago paid his men who did the work and is out the interest. But let him have that sum, it would be the amount defendant should have paid had it, instead of the engineer, ordered, plaintiff to do this extra work. Plaintiff should now equitably be