173 S.W.2d 580 | Mo. | 1943
Lead Opinion
The Webb-Boone Paving Company, a corporation, holding the primary contract, instituted this declaratory judgment action against the State Highway Commission of Missouri (hereinafter sometimes designated Commission) and Anthony McNamee and Oliver McNamee, partners engaged in business under the name of McNamee Brothers, the subcontractor, for a judgment declaring the rights of said subcontractor, if any, against plaintiff and of plaintiff, if any, against the Commission. Ch. 6, Art. 14, Secs. 1126-1140, R.S. 1939. The amount involved is asserted to be $9,663.06. The judgment declared the rights in favor of plaintiff and defendants McNamee Brothers and adverse to the State Highway Commission. The Commission appealed. McNamee Brothers seek to dismiss the appeal. The Commission questions plaintiff's right to a declaratory judgment under the pleadings and also contends the declaration, on the merits, should have been in its favor.
The Webb-Boone Paving Company and the State Highway Commission, on or about November 16, 1934, entered into a contract for certain highway construction work, known as project N R M — 475 C2, Route 40, St. Louis City. Plaintiff subcontracted the grading and filling to McNamee Brothers. When, according to the petition (and the record), McNamee Brothers entered upon actual construction work they soon first discovered, a short distance below the surface *925 of the ground, materials, objects and obstructions not shown on the proposal form, plans and specifications, to wit, poles or piling and upright timbers with many steel cables, supports, and other appurtenances attached thereto, of an abandoned railway trestle, and bases for trolley poles and car track concrete foundations. This hindered, delayed, and interfered with the McNamee Brothers' performance of their contract and resulted in their expending $9,663.06 (alleged to be a reasonable amount), in completing the work over and above that which they would have had to expend had not the aforesaid subsurface structures been encounted. McNamee Brothers made demand upon the Commission and plaintiff for payment. The Commission refused payment. Plaintiff thereupon instituted this action for a declaratory judgment, joining the Commission and McNamee Brothers as defendants, on the theory that if plaintiff be liable to McNamee Brothers by reason of the warranties contained in the proposal form, plans and specifications of the Commission, adopted by reference in the contract between plaintiff and said McNamee Brothers, then plaintiff was entitled to be reimbursed for any such damages by the Commission by reason of the warranties contained in the proposal form, plans and specifications of the Commission forming part of the contract between plaintiff and the Commission, and on the theory that if the Commission be liable directly to McNamee Brothers by reason of the premises aforesaid, then plaintiff should not be harassed or put to the expense of defending a suit by McNamee Brothers.
The court adjudged and declared that the State Highway Commission was liable to plaintiff and plaintiff, in turn, was liable to McNamee Brothers by reason of the premises aforesaid; and that, upon the filing of a proper petition etc., evidence be[582] adduced to the end that reasonable compensation and profits be adjudged to McNamee Brothers. The material provisions of the judgment are set out in the foot note.* *926
[1] McNamee Brothers' motion to dismiss is on the theory (a) that the Commission's appeal was premature because no final judgment had been entered, and (b) that the appeal does not involve $7,500 or any other amount. The motion is overruled; because:
(a). The title of the Missouri declaratory judgment act reads: "An act authorizing and empowering the circuit courts of this state to declare rights, status, and other legal relations, by declaratory judgments and decrees, and repealing all conflicting laws." Laws 1935, p. 218. Section 1 provides that circuit courts "shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. . . . and such declarations shall have the force and effect of a final judgment or decree." Sec. 1126, R.S. 1939. And, Sec. 7 provides: "All orders, judgments and decrees under this act may be reviewed as other orders, judgments and decrees." Sec. 1132, R.S. 1939. As indicated above, plaintiff's petition sought a declaration of the rights, status, legal relations and liabilities of the parties plaintiff and defendant. The scope of the relief sought was not broadened to include curative or coercive relief by any subsequent pleading. This is also shown by the paragraph of the declaratory judgment adjudging that, upon plaintiff filing a proper petition etc., evidence would be heard that it might be adjudged what, if any, moneys were due from the Commission. Said adjudication is justified, if proper, only by Sec. 8 of the act, reading: "Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper." Sec. 1133, R.S. 1939. The declarations on the issues within the pleadings (see Sec. 1127) constituted the "declaratory judgment or decree" mentioned in Secs. 1126 and 1133 and sought by the litigants and, under Sec. 1126, explicitly "had the force and effect of a final judgment or decree." Under Sec. 1184, R.S. 1939, appeals may be properly taken from "final judgments." If (without so holding) the authority and power "to declare rights, status and other legal relations by declaratory judgments and decrees" embrace an adjudication of the amount of money due as further relief within Sec. 1133, the mention of the right to such further relief was incidental to the declaratory judgment before us, disposing of all the issues presented by the pleadings, and did not prevent the judgment becoming a "final judgment or decree" within Sec. 1126. It follows that an appeal is authorized by statute from the instant judgment.
(b). A failure of this record to establish more than $7,500 to be involved might be a ground for transferring the cause to the proper *927
court of appeals; but would not be a ground for dismissing this[583] appeal. Plaintiff's petition laid movant's damages at $9,663.06. Movant's pleading nisi admitted, did not deny, this allegation and we find no showing contra of record. Under State ex rel. v. Reynolds,
[2] The Commission contends that where, as here, the pleadings show a matured cause of action, legal or equitable, relief by way of declaratory judgment does not lie as our code contemplates a final determination of disputes in one action and, further, courts should not be required to function as attorneys in advising litigants of their rights or obligations. Upon the issue stated the cases appear not to be in accord, some holding the uniform declaratory judgment act affords and others holding it does not afford a substitute or alternative mode of relief in instances wherein all the constitutive elements of a matured cause of action are in existence. Consult Borchard, Declaratory Judgments (1941 Ed.), p. 315, Ch. VI, "An Alternative Remedy"; Anderson, Declaratory Judgments (1940 Ed.), p. 183, Secs. 68, 69; 132 A.L.R. 1114, 1120; 114 A.L.R. 1367; 87 A.L.R. 1212, 1219, and annotations referred to; 9 Uniform Laws Annotated (1942 Ed.), p. 215, Declaratory Judgments Act. Annotations to Secs. 1, 6, 1 C.J.S., p. 1022, Sec. 18, d, (3), p. 1027, (8); 16 Am. Jur., p. 286, Secs. 13, 14. Liberty Mut. Ins. Co. v. Jones (Banc),
The cases relied upon by the Commission do not necessarily establish error in the circumstances before us as the factual situations differ. The positions of plaintiffs and defendants in ordinary proceedings may be the reverse of their positions under the declaratory judgment act. In ordinary proceedings plaintiffs are usually free to choose the *928
time for the institution of their action or suit, whereas defendants usually have to await that event. The act may afford the usual defendant protection against delay in proper instances. Peterson v. Central Arizona L. P. Co.,
[3] The substance of the case on the merits follows. The Commission contends there was no fraud, no misrepresentations and no implied warranty that subsurface structures would not be encountered. Webb-Boone contends that from the Commission's plans, profile sheets, cross section sheets, and proposal forms or bid sheets there was an implied warranty that subsurface structures would not be encountered and that compensation is allowable for extra work or expenses incurred by reason of conditions being other than as represented. The Commission has paid all moneys explicitly covered in the contract.
We might extend this opinion by reviewing a number of the many provisions of the highway construction contract but deem this unnecessary. There is no showing of any affirmative misrepresentation or fraud. Webb-Boone relies upon what it terms an implied warranty. Cases involving Federal contracts are stressed,* which cases, as stated in MacArthur Bros. Co. v. United States,
Examining the contract between Webb-Boone and the Commission, we find it embraces identical covenants with those in the contract considered in Sager v. State Highway Comm.,
The judgment nisi, which respondents seek to sustain, declared the Commission was liable "for any additional cost . . . for removing the subsurface structures . . . and any additional cost, over their bid price," to McNamee Brothers "of roadway excavation, Class A, . . . plus a reasonable profit on these items." With respect to extra or additional compensation in the circumstances, a public contract being involved, see Sandy Hites Co. v. State Highway Comm.,
The fact that the Commission's project engineer knew and approved of the contemplated use of the elevating grader method of excavation, which could not be [586] employed after discovering the subsurface structures, would not impose liability upon the Commission. The assistants and representatives of the Chief Engineer, under expressed contract provisions, were without authority to "revoke, alter, enlarge, relax, or release any requirements of the special provisions, specifications or contract, nor to issue instructions contrary to the plans and specifications . . ." Gillioz v. State Highway Comm.,
There is naught to the argument that the Commission's cases involved "fixed price" contracts. Sager v. State Highway Comm., supra, for instance, was a "unit price" contract.
The judgment is reversed and the cause is remanded with directions to modify the declaratory judgment so far as is necessary to relieve the State Highway Commission of liability.Westhues and Barrett, CC., concur.
"It is ordered, adjudged, decreed and declared that upon the pleadings and the facts in evidence it is the finding and judgment of the Court, and the Court does declare, that the plaintiff has and can maintain a cause of action upon the pleadings and evidence adduced herein against the defendant State Highway Commission of Missouri; that under the pleadings and the evidence herein the defendant State Highway Commission is liable to the plaintiff for such sum of money as may be found will compensate the defendants McNamee Brothers for any additional cost to McNamee Brothers for removing the sub-surface structures described in the evidence, and any additional cost, over their bid price, to said defendants McNamee Brothers of roadway excavation, Class A, as defined in plaintiff's Exhibit A, plus a reasonable profit on these items;
"It is further ordered, adjudged and decreed that upon the filing of a proper petition for that purpose by plaintiff and at a time to be fixed by this Court, evidence be adduced by the parties, to the end that it may be found and adjudged what, if any, sum of money will reasonably compensate and give a reasonable profit to said defendants McNamee Brothers for removing sub-surface structures described in the evidence and for the additional cost, if any, over their bid price, of excavating by them of Class A roadway excavation;
"It is further ordered, adjudged, decreed and declared that the plaintiff is liable to the defendants Anthony McNamee and Oliver McNamee, doing business as McNamee Brothers, in a sum of money equal to the sum in which defendant State Highway Commission may be found and adjudged liable to the plaintiff; . . ."
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur. *932