*1 COMPANY, CONSTRUCTION NORDIN al., Inc., Appellants, et cases). NOME, Appellee (two

CITY OF Appellant, NOME, v. NORDIN

CITY OF Inc., COMPANY, CONSTRUCTION Appellees. al., et 1290, 1299 and 1520.

Nos.

Supreme of Alaska. Court 1, 1971. Oct.

Rehearing Denied Oct.

45'0 approved the final estimates he Nome, F. Millard Kennedy', R.C. Engineering, Philleo of Mr. Philleo Niewohner, Fair- Ingraham &

Ingraham construction, supervised testified banks, of Nome. that he had determined the work was ac- Staley of Howard Folta and Richard *3 ceptable, he had the and that so notified Delisio, Schaible, Fair- Staley Merdes, & City. Oles, H. Hal- and H. banks, and Stuart G. 1965, City Council 4, the Morri- stead, Leedy, and Oles December Degarmo, On remainder Seattle, Nordin the Washington, pay for Nordin Con- son, voted to $20,000 for Fidelity reserving Inc., price, Co., United States contract struction others. deficiencies. Co., Bronson, and certain and Guaranty correction & City engaged February In DIMOND, and BONEY, J.,C. Before Beck engineering firm of R. W. the Seattle ERWIN, and CONNOR JJ. inspect & Associates to further the sewer OPINION system. and George water Mr. Martin ERWIN, inspection, spending approximate- made the Justice. ly days going through and three the utilities the award revolves around This case system, punch a City compiling list the work of Nome payment ultimate con- which seemed to deficient. Febru- a On “City”] of construction [hereinafter, ary City system Manager wrote a letter a water sewer tract for enclosing punch to Nordin Co., list and Inc. & Construction Nome to Nordin necessary. dicating what corrections were [hereinafter, of Fairbanks Associates Thereafter, required issued Nordin a check finding a The “Nordin”]. $20,000. money paid by amount of Nordin returned return Nordin to substantially this check1 and the issued another City for failure of Nordin $17,500, $2,500 retaining the amount of perform the contract. as the monies due under the contract to Ar- Engineering & Philleo firm The completion remaining insure correc- Fairbanks [herein- chitectural Services punch tions from the Martin list. Mr. prepared Jeff- after, Engineering”] “Philleo Heating, ress a Plumbing of Globe & for plans specifications subcontractor, that the de- Nordin asserted following elements: basic consisting five minor ficiencies were corrected with However,

exceptions. de- correction was plumbing nied foreman on at trial job for Globe. April 23, 1966, On a Nordin submitted claim compensa- for additional $196,334.59, tion of required for extra work by changed response, conditions. present filed against action Nor- din, associates, surety, and several for project The was bonded United States $3,786,542.16,alleging a failure of substan- Fidelity Guaranty Company. performance by tial resulting Nordin years during the place took Construction consequential damages. Nordin denied payments periodic with breach and for counterclaimed the amount When progressed. as work made set forth in the claim for additional work. submitted Pay Estimate” “Final summary There were motions for several to December September period of change and for venue the work claimed 1965, Nordin 5, 1969, September were denied. On City’s resi- The substantially completed. re- Freese, pre-trial conference was held which testified Mr. Gerald engineer, dent accept Payment “Acceptance Re- the check because of the of Final Nordin declined to lease” contract clause. stipulation suited in a should be returned trial be held jury further found that Anchorage, and in an order that parties Nordin should be awarded its counterclaim file amended pleadings. performed. Judgment extra work complaint amended was filed on parties entered on this Both verdict. IS, 1969, September alleged An appealed. from a appeal substantially work did not comply 60(b) denial Rule relief from Civil complaint terms contract. fur- judgment motion has also been consoli- ther stated that as result of the substan- dated. nonperformance, tial was entitled to I performed, compensation for the work *4 The central case, issue in this repay $1,391,542.16 and should the which both at trial appeal, and on wheth been paid.2 had been er substantially Nordin performed the con complaint, amended In answer tract. Before considering jury whether a allegations the specifically denied Nordin question presented was by on that issue breach, and counterclaimed of substantial below, however, necessary is to for work $198,854.59 extra for sum of examine City’s theory recovery. of only by The required changed conditions. City The did proceed alleged by theory was a Nordin on defense affirmative of damages for performance.3 defective acceptance by the Rather, City sought restitution of pleading City In its final denied the paid, money on based an alleged failure allegations counterclaim, re- of performance substantial by Nordin. plied by stating to affirmative defense doing, so City upon relied principle, occurred, or, acceptance that no had well settled in American alternative, construction con acceptance (1) that if found: “ * * * law, tract that per ‘substantial go faulty did not to materials of because formance’ is the condition—the fact that contract, the terms of the (2) could 4 must exist payment before is due.” defects, (3) vitiate latent nulli- would be distinction between fraud, recovery theories of fied as induced actual or con- simply was Thompson stated Little structive, of the architect/en- Strawn, Ass’n Water 917 gineer, Engineering. Philleo (Colo. 1970), as follows: The case was submitted to which found that substantially Nordin failed to The rules appear to prom- be that if the perform and that paid the total proves amount isor complete and perform- full 2. 3. For a case would formance. pleadings, formance. courts have contractor relief ages tion of whose struction Co. v. Reliance on complete. Although mon law recting had been retained covery (1961). (Alaska 1970). In this building measured either performance structure result, allowing deficiencies rule, case, however, sought primarily damages apparently gradually Annot., setting contracts cases of substantial remedy no contractual due to the defective Ins. “owner” must Under the decrease in value from final recovery was less than full or, for breach of a con- see out not without 76 A.L.R.2d Co., moved to the forgot if economic waste of contract Hopkins principles the cost of cor- 475 recovery by could be City, by that harsh com- payment. contractor show rely conflict, Constr. $2,500 dam- posi- per- per- nei- 223 re- 4.3A Paving Corp., New Tex.Bar Co., Bride & the contract. Rather, tracts Performance § contractual a toas see such ther cost (1931) ; (1960). 31.10 failure Part (1937). Corbin on a of Charlton v. J. C. Blunk Constr. 253 Iowa entitle Nordin to no York, : failure defective, II, See also of Wachtel, ^[5] J. Sioux Damages integrated correction nor recovery Am.Jur.2d, infra. City’s 31 Colum.L.Rev. (1969) ; For substantial Contracts contractual Building Guittard, Building Government Contracts Iowa burden where there has system, v. Western possibility Note, Contracts (1969) Restitution, decreased recovery § it constituted Contracts N.W.2d 829 performance, performance, as a 701 Substantial ; to Asphalt at 314 4 Mc whole, value. N.W. prove Con 375; non- system, or utilidor the com- utilidor recover entitled 2.4% anee, is he bargained to less than system. This amounts full consideration plete 1½% something establishes entire sewer and water proof for; if the Yet, is complete performance, full and built less than .Nordin. he performance only, has found is, substantial the record price $1,391,542.16, to recover the contract entitled defendants against necessary re- expenditures en- less those of the value whereas 2.4% performance bar- complete the quired system ($748,733.00) tire utilidor for; performance falls and if the gained only $17,969.59. equal substantial, being prom- then the short of argues testimony there was no recovery. isor entitled concerning the ten-inch direct burial water- recover, therefore,' it was In order pipe, raw water intake and pipeline, a failure prove cumbent the sewage plant treatment building, lift substantially comply with by Nordin to utiliducts, station and and only de minimis contract. construction terms testimony as storage to the water tanks legal principles, many general As pumprooms. precise rules lay down impossible to Previously has held this court govern the is- application mathematical *5 can presented is unless the court issue of sub- a failure to amounts of what sue differ say minds cannot reasonable that Corbin Professor performance. stantial order presented.6 In on the issue to be as follows:5 problem summarizes Nordin, be of we must uphold the view easy lay for It is not down rules say was no that there evidence able to determining amounts to ‘substan- what per- of substantial a failure upon which performance/ justify a tial sufficient to inferred reasonable could be formance price (subject for the contract in the is viewed the evidence jurors when asserted) injury, to a counterclaim for if We, light favorable to most always particular case. It pre- the evidence therefore, must review question fact, degree, a a of a matter of rule in this apply the trial sented at question that must determined rela- be case. tively complex to all the factors other AND UTILIDUCTS A. every that UTILIDOR exist instance. The vari- ation gen- in these factors is such that of the construction A basic element of eralization difficult and the use water and the sewer utilidor contain precedents dangerous, cases as (foot- proper of materials the use pipe was note omitted) select of Six inches bedding and backfill. performance of as extent un- placed Such factors be required to gravel 1 was class have ob- of breach utilidor; and the wilfullness material unclassified der vious free excavation, relevance. from the trench selected throughout material, required this case argued was organic utilidor; fail- one is no a along that there the sides of placed gravel performance could be 2 was ure of substantial select class and a half of foot top maintained, immediately on states as fol- specifically placed and required to be select utilidor; of and six inches lows : of the placed Thus, required to testimony gravel was only 1 we have of class 1 backfill. Class of the only surface need to rebuild of 12% 20% (Alaska 1967) ; 5. 3A Corbin on § Contracts 704 at 318- P.2d 913 Bertram v. (1960). also, (Alaska ; Harris, 1967) 19 See Restatement of Con- 423 P.2d 909 (a) (1932). Nesbett, tracts comment of Fairbanks v. 1967) (Alaska ; Finch, 607 Mallonee v. (Alaska 1966) ; 6. See West Adm’rx of the Estate of 413 P.2d 159 Saslow Nershak, 1968) (Alaska (Alaska 1964), Rexford, 440 119 P.2d 395 P.2d 36 Kodiak, Saslow, Bolden v. P.2d 796 rev’d Rexford v. (Alaska 1968) ; Faltin, (Alaska 1967). Merrill v. gravel, just The backfill was and are both clean beach ditch. shoved with class only analysis compaction. size in the sieve without differing dozer required also gravel. The contract Smith, professional engineer Mr. James compacted to be at one-foot backfill manager Engineering and Science intervals, compaction up two 90% Alaska, testified that when he examined grade feet below finished and com- exposed 95% portion an after it paction above. built he observed a void under the utilidor, bedding supposed where the was Devine, carpenter Mr. Edward been, to have backfill was full of Nordin, testified material the same timber tundra. The first two or three excavated from the trench feet material from ditch consisted placed as further back fill. He testified “ * * * percent junk old board places that in laid some utilidor was years and accumulation of civilized directly permafrost, re- without living.” Mr. Smith further testified that it, places quired bedding under and in other existing the material streets was laid in water. Nome, logs, as shown drill Scott, Clerk, Mr. Robert Nome qualify acceptable as backfill mud, planks logs testified were specifications high because of the used as backfill. Dallas Eberle, Mr. Nome percentage present. organic material Utility Manager, testified the material testimony From this could have excavated from trench old contained gravel found that inches of six class planking wood this material bedding, was not used as that material free replaced as backfill. Mr. Donald organic material was not used back- councilman, Reader, Nome testified fill, that gravels class 2 and class 1 the material consisted mud excavated *6 placed top on the utilidor and that organic and silt with material such drift- what was used as backfill was not com- planks, wood and and this same ma- pacted compaction in- at one-foot 90% terial back went into the trench as back- jury tervals. The could found that have fill. Reader further ma- testified that the mud, permafrost the utilidor placed was on just terial in was shoved back and bedding, and water with no that material compacted. In places, some the excavated street, tundra, the planks, from full tim- others, bedding; material was used as in ber organic material, and other was used placed the directly utilidor was or water pushed as backfill and that the backfill was permafrost bedding. with no compaction. into back the trench with no Morse, Mr. employee Robert a former Nordin, testified that the material exca- testimony There is concerning also the vated planking, tundra, consisted of board, present status the Mr. utilidor. Allen silt, permafrost glare and This same ice. Doyle, airport manager, Nome testified material many was used as backfill. In system that he viewed in the places bedding there was no used and the pulling and at that time the sections were right water, utilidor built perma- apart, heaving, sagging. Smith in- Mr. frost and on mud. compac- There was no spected system five sections of in the the tion. summer of In four of these five contractor, Reader, damage

Mr. Charles there was utilidor. Nome extensive testified that the the The floor utilidor soil excavated from of the had settled streets misalignment. of Nome consists of there was had so tundra One area decomposed in vegetation, and caved is full of it was not safe to enter. One planks, drains, old firelines and old the section had it did not so flattened out that grade remains of the adequate carry sewage. old town. No have the gravel beach bedding. went into the The sharp dips utilidor was Another section had that were right ground laid developing. on the as it in the problems which he May it cause the in would utilidor examined Eberle Mr. system, but gaps in others observed considerable and observed of 1969 system would continue of the condition places where several were it. There many future. In deteriorate appreciably. had moved walls of the dropped out bottom places the system Mr. Smith observed When away pulled from utilidor; it had percent portion ten to twelve longer pins drift stringers, and re- inspect to be able needed he was ground from pressure preventing portions were and rebuilt. Other moved walls inward. moving the from in- jury could process failing. system and Mr. Vernon Buloard was in a similar fer that entire Mr. William contractors, Carlson, plumbing examined Nome condition. When Mr. Buloard at the re- trial, fifty trial system percent before spected system prior about Buloard testified part Mr. quest rebuilding. If apparently needed as follows: present everything upgrade condition system inoperative, is Mr. part inoperative. is Smith from utilidor Probably percent system opinion that entire was of the an- point or slumped in one now inoperative ten within relatively would be caving are walls other. walls—the years of initial construction from the date separated in, of the floor bottom rebuilding. The cost of substantial without up. coming silt and mud there’s as more rebuilding would be the same sewer lines many places the than cost initial installation. ice they’ve built badly that leaked stalagmites. up testimony could infer underneath like humics From line sewer forced the have to be rebuilt humic has will This ice whole joints and has broken the initial up years into the air the date of within ten mul- many construction, inoperative. instances. There’s apart in Almost the water saddles. of these tiple leaks on that the cause could infer into going used coupling pro- that was every the failure of Nordin problems was leak of the mains property compaction lines off re- bedding, backfill vide hydrants have the fire Two of especially now. view of quired wood The rotton been connected. expert testimony by never Mr. Smith *7 of the quite a few slumped in in system has had been if the design could succeed places in utilidor are places. specifications. There according to constructed through now. you crawl cannot as replacement would be much The cost through absolutely get way to There’s of initial con- as more than the cost of water in is over a foot it. There Thus, jury could find that struction. along majority the overall utilidor City, to breach the within due Nordin’s leaky lines sewer effluent from the construction, years ten from initial condi- are that exists now. These spend as much or to have to more rebuild saw. tions I system spent building as it in it. has shifting testified that Mr. Carlson B. AND WATER MAINS SEWER (or and the laterals sagging of the utilidor problems testimony of There is other misaligned them had utiliducts) system. Buloard work- with the entire Mr. homes not be made to the connections could plumb- plumber and on the as a foreman ed tearing they intended to serve without were aspects He testified ing of the contract. shifting had caused up the street. The was not instances work some At system plugged. to become the sewer specifications done in accordance with the impassable places system was several job of the entire was not that 20% of the utilidor had caved because the walls completed at all. in. improper back- burnt off from the that if Tar was inside Mr. testified Smith installation, only pipes. This rust in of the causes used in the outside fill fittings couplings Improper tank had to backwashed down line in pipes. pipes get This caused leaks order start flowing were used. to the water to sewer mains prime pumps. now exist. The wooden the line and to When which tank, excessively and not creosoted. milled were there wasn’t sufficient water allowing raw joints, This loose water to poured caused be hauled and into sewage to run out. Now the whole tank fill to it and the amount accumulate improperly pipes were system. leaks. water needed hooked those' up soldered, creating Return bins or only subsequently leaks. This was corrected when installed, causing the fittings were not changed source to Moon- water time repurchase to these items a later light Springs con- another construction hook-ups when were made. Anchors were pertinent tract not herein. installed, pipe, expansion causing the fittings placed Black were the water temperature changes, and contraction from galvanized treatment facilities rather than bend, po- hangars, “travel” off the ones that would not rust. The black fit- tentially improperly break. were Saddles rusted, tings contaminating the water in the large installed or not installed at all. A plant. water treatment majority of the water lines that were Mr. Buloard testified and Mr. Reader connected saddles were not con- confirmed that a crack exists in the foun- nected, making impossible nearly now dation plant, of the water treatment up. pitorifices, designed them hook fixed, has never causing the water permit pre- constant water circulation to to leak every out so that third fourth freezing, vent improperly placed; were as day storage goes dry attempt tank if no placed, pitorifices “absolutely are use- keep is made to it filled. Thus, every less.” home in Nome is re- Crinklaw, Mr. Howard former Nome quired a circulating pump. to have water city manager, testified that the saline cut- hangars, pipes from which the sewer off on the Snake River water intake was hang ceiling utilidor, from the lack tide, At high broken. the first the entire enough adjustment thread for in some system filled with salt water because the places and in deeply others are not cut failed to automatically cutoff close the enough, causing strip them adjust- when intake. ment is made. In at places least two Mr. Buloard testified that the chlorinator hangars pulled through ceiling be- sewage for the raw discharge was never dry cause of rot the wood of the utilidor. up hooked sewage at the plant treatment This hangars failure of the it im- made a result the was contami- possible adjust grade pipe. nating Bering Sea. The flex hoses that connect the sewer Mr. Crinklaw testified that the storm main to the individual sewers too *8 by drains were cut the contractor and not small and do not Furthermore, fit. these repaired, required by as the contract.

hoses were cut too short. These defects D. permit do not the hoses TESTIMONY BY to absorb the shifts CONTRACTOR in the utilidor and cause the hoses to come response testimony, to this off. This in turn causes sewer fluids and Fidelity United Guaranty States and run into the utilidor rather than into the Company presented oral and supporting sewer main. documentary testimony which was diamet- rically opposed to testimony much of the

C. WATER AND SEWAGE given on behalf City of Nome. Mr. TREATMENT PLANTS Freese, the engineer resident for Philleo There was a pipe broken for water intake project, the testified that compacting the in the Snake River and there way done, was no to was and that he recommended ac- prime pumps the to fill storage the water ceptance because he felt the was by tank normal means. water in the essentially complete and usable. He fur- for working who Jeffress, Mr. utiliducts were all that stated

ther as an of- of the contract City Manager at at the time Slagle, the Globe Mr. located as Hegdal, who and Mr. requested; engineer, fice had the time John bidding Nordin in operable, engineer and for was the detector was the saline that gone the construction had job, testified that not recon- drains were storm certain that according to that the Martin plans, forward Slagle Mr. himself. by direction nected made, punch were and that list corrections approved the that he stated further He by pitori- the deficiencies claimed witnesses pipes in the burning of holes Addi- City simply had not occurred. of those thaw and the elimination fices Gunderson, tionally, Leslie specifi- Mr. who called for which were wires manager for Nordin at Nome general cations. May, problems that indicated were superin- Payne, the Loren Mr. being caused utiliducts not located tailings mine used tendent, that he testified City, that the work was and extra in amendments required as beach sand and delays by necessary because of only hack- he and specifications, He locating property lines. testified in- material where original filled calling that he had sent several letters this testified He permitted. specifically spector Engineering the attention of Philleo and put logs or wood not he did that City, and identified several exhibits he compactors backfill, he had two that and copies as of the letters. Payne denied Mr. job. on the performing in- Engineering Mr. Philleo of Philleo way pipe inwas intake the water that dicated that he recommended to the properly that was asserted damaged and payment job and that be made period of during the worked and installed accepted, opinion because it that was his Payne job. Mr. they on the that were time performed according had been put pins were not the drift testified specifications. plans Mr. Phil- plans per the because as in the utilidors indicated that there leo further were by the changed ordered they were responsible spectors job to him on Slagle, no thaw wires and that Manager, times, relied them and all that he they were directed in because put given by the the assurances contractor that Engineering. by Philleo progressing satisfactorily. work was Associates, testimony, In rebuttal to the above Beck & of W.R. Mr. Martin Morris, inspected Hegdal, the utili- recalled Mr. Mr. Seattle, that he testified Buloard, Carlson, City, gave Doyle he Mr. Mr. Mr. requested dors Reader, inspection, again specifically deny Mr. result as a punch list plans compliance all of there had been constituted with the list necessary specifications. he thought would work he specifications. system up to bring the noted, previously As we have the suffi- check did not he Martin testified Mr. ciency performance of the contractor’s un- utilidors, he did used wood building der a or construction contract only defi- sewage, that the raw see generally an issue to be determined cov- frost certain wooden ciency trier fact.7 In order to overturn did system. He missing from ers were case, the verdict in this we must *9 frozen at ground was state that say that is there no evidence which February in inspection he made the time might finding reasonable minds differ in inspected he that the of performance and that failure on behalf plaintiff of the was substantial. from the inside. Super. 294, (App.Div. Thompson 191 A.2d 7. Ass’n v. See Little Water 1963). (Colo.1970) Strawn, Power-Matics, Ligotti, 79 N.J. Inc. v. position that formed contract. The trial court cor- advances the Nordin rectly substantially perform jury. submitted the issue to the of failure to unbelievable, “it that inherently and II go to task to and formidable hopeless is a vague against the argue and the record argues that if even nonen- testimony and the hometowners substantially perform, failed to defi- regard with to gineers” who testified value, received something permit to However, de- system. in we ciencies price retain the contract rule promulgate a which cline to performance rendered an unjust works testimony to be require expert contradicted enrichment.9 Nordin uses the doctrine as testimony in order for a by expert a catch-all to proposition advance the question presented.8 must deter- to be We no happened matter what in the lower jury question on there is a mine whether court and no matter what were the tactical of all the evidence and the examination positions parties, of the the court erred in raised reasonable inferences can be awarding Nordin the value of the serv therefrom. ices it rendered. An initial question below, clearly ap- whether, arises testimony From the as to under the Alaska Rules pears that reasonable minds could differ Civil Proce- dure,10 recovery may per- substantially on had for unjust whether Nordin had 8. ther other circumstances. inferred eral Reasonable formalized distinction is what der damages. ages contract such an tion sent *10 on obligation tected. or appropriate remedy tract and one based on we have plied tract without testimony ties to value workmen’s champ an mony Corp., tinguish P.2d An Although grounded any agreement implied in implied promise criminal based objective thereto, although in law and hand, “implied doctrinaire, form a arrive at approach. applied, from the seeks between contracts the services (quasi-contract) may held to make restitution is must he Employers An 501-502 on expectations compensation trier theory cases making any attempt fact. “implied a fiction an recovery contract; distinction between an It subjective; of fact. between the discussion law” weighed “implied surrounding [Bowker follows here is intention (Alaska 1962)], It Liability pay is an proper compensatory application recovery in fact” contract is are inarticulated, necessary effect “implied (Alaska 1970)], goods provided. implied clear that a with cases in fact” con- thereby pro- contract is fair market there is measure parties’ parties, law. State, Assurance facts quasi-con- based be some- based lay in law” on the [Beau expert based dam- testi gen- par- law dis- im- as- ac- or- no ei- on 10.Alaska 39-50(1963) ; 1, Williston on Contracts the value of the benefit being enforce, quired. ment of riched expectation §§ recovery for is the serving out party’s against any claim if pleading Alaska Civil claim as ing party claim, tled. claim for part: takenly designated relief to which he deems himself enti- designation. claim, counterclaim, See, 1, 3-3A at A ^[*] (c) (a) justice one plain pleading the transaction or adjudication A restitution person * * * subject Corbin on is Civil the detriment Restitution express claim and as if there had been a pleading based ^[*] statement of the interest demand for claim which relief, defense, opposing party, pleader Rule pleading shall contain shall state should not requires, Rule matter of (3d on When a or Contracts, n is whether an which sets forth a ed. cross-claim third- the court on * * * implied is entitled to provides 13(a) provides does not usually protect. presence 155(1) 1957) ; equitable shall another. occurrence at the time of which was ac- party ^[*] pleader claim (1) unjustly §§ if it arises promise a counter- a counter- limited to treat opposing 18-19 at has mis- Restate- (1937). of original Rather, require part: for the proper maxim terms, There show- relief, third short ^[*] en-

405 pleadings, where con- ment13 the state of the express on only an where enrichment supporting was factual evidence there complaint or counter- pleaded tract is Clearly this tied to request for relief. claim. idea that the contractor position is the suit bar, brought case at In the substantially comply fails with to who under paid all the to recover mqney rely specifications cannot plans and of sub- ground on the construction left recovery, for but must be the contract perform contract. failure to stantial proof of the value to provide to actual Nordin, it contractor, answered performance tendered. owner and counter- the contract performed proof adoption of burden this Nothing said extra work. claimed for in may problems cases leave some difficult recovery about way of counterclaim establish; on to actually where value difficult for work unjust enrichment for hand, leaves the other other result City prevailed if in its com- performed peculiar with the owner the structure plaint. problem attempting prove the value rules jurisdictions acting under Other may jus- of an structure. He unwanted recovery permitted ours have similar to tifiably no him feel that has value to quantum meruit without amendment for substantially because it is different Moreover, court pleadings.11 problem can what he for. The contracted position previously has taken presented form: As between another may pleadings be amended conform has the owner the contractor who has proof even after the trial occurred substantially perform, failed to who should long judgment has been entered12 proving the burden of the value provides grounds as the presented performance? recovery or defense asserted. for the Reason dictates that the must contractor conferred appear It thus show the value' the benefit contractor owner, may on the some per- rely could recover in this case for work theory damages protect artificial rule him.14 unjust formed under a enrich- parties ter view is there that while can be no -whom the court ac- cannot ** * recovery quire jurisdiction. the contract where sub- occurred, 54(c) provides breach can Civil stantial has there Alaska Rule part: quasi-contractual recovery Except party against benefits received. See of actual to a value whom a every judgment by default, at § 12 Williston Contracts 220- is entered 1473 (3d 1970) ; grant ed. 5A Corbin on Con- final shall the relief (1964) ; party tracts Restatement § to which at whose favor 357(3) (1932) ; entitled, party § rendered is even if Contracts McCor- Damages (1935). mick on at not demanded relief in his such pleadings. provide for re- 14.There are eases 11. See v. Matarese Moore-McCormack covery less Lines, Inc., rate 681, contractual 158 F.2d 170 A.L.R. performance. A close (2nd than 1946) ; substantial City, Cir. Kansas St. however, cases, shows examination of such Co., L. & C. R. Co. v. R. Alton reality performance (7th 1941) ; substantial F.2d 780 Cir. rel. State. ex attempt Gary an to soften harshness Electric v. Fund Fireman’s Indem. requiring early Co., re- the covery rule 67 N.M. 355 P.2d 84 A.L.R. complete per- (N.M.1960) ; Annot., there was unless 2d 1072 84 A.L.R. posi- sympathize (1962). We formance. 2d 1075 cases, feel tion taken in such but Sexton, 12. Gilbert v. 401 P.2d purposes doctrine to be served such (Alaska 1965) ; Deveau, 385 Harris by requiring established are better cf., 1963) (Alaska prove he has benefit contractor what Faltin, Merrill substantially he conferred where fails (Alaska 1967). changes unilaterally perform. his If he Although manner, appears performance he be some con- in a substantial there authority, expect given benefit of we think that the bet- to be flict cannot *11 466 by unhappy by the

Any testified to own- could be more than value use offset understandably points may injury.15 less than the Professor Corbin out that er making the other of a bad does actual benefit he receives. On the best situation hand, necessarily signify has not the contractor cost records and benefit: present expert testimony value can mere fact that the is defendant provide arriving a at which will basis by possession of the structure erected which, a fair of the benefit or at the value plaintiff is the defendant’s land least, very provide starting point a can not in itself to show that sufficient present from which the owner can rebuttal any sense, accepted it in defendant has testimony. it, or has used it. Fur- benefited However, that, thermore, actually making clear test his of it whatever use used, prove some evidence of value of the does not bene- the benefit derived presented. fit must be injury Actual use does therefrom is in excess caus- necessarily prove a plaintiff’s net benefit has ed breach. Use of structure, however, been conferred the owner. The value is some provisions 598, (1887) (contract contractual as to value which Md. A. 8 752 to profit figures. parsonage stone, per also include and overhead cover with certain totally defeating purpose formance 15. See Henning, Turner (D.C. v. 262 F. intended 637 because the use of streaked 1920), unsightly stone) ; Cobe, Cir. where a builder constructed v. Gillis 177 flooring porch. 584, (1901) Feeney a ; defective concrete Mass. N.E. 59 455 these, tearing Bardsley, 239, The owner used without v. 66 N.J.Law 49 A. 443 reconstructing. (the (Er.App.1901) puts them out and This was a court case “acceptance”, plaintiff held not to be and the where the 2:)4-story house) ; 1 built instead of ½ right damages owner still had a to meas Lundin v. Butternut reconstructing Valley Tp., ured ing 259, cost of accord Minn. 214 172 888 N.W. specifications merely (1927) ; Kupfer McConville, to and not to 48 N.D. v. agreed 609, (1921) (a digger difference value of build N.W. 185 1005 well ing building. feet, and the defective In 5A drilled 1315 agreed, instead of 1450 (1964), voluntarily job, Corbin on Contracts § 1126 27 abandoned having produced water; quantum Professor Corbin notes are “[t]here no mer- good many definitely refused, plaintiff having cases in which it uit was of appears part performance by proof fered either of the value plaintiff actually resulted in no bene well as an addition land as to plain injury fit to the defendant. these the to the defendant caused get compensa breach) ; tiff cannot Exeter Mach. v. Works Carpenter Wonham-Magor Eng’r Works, App. v. See tion.” also 134 Jose y Co., (8th 1928) ; 386, (1909) (con Oil F.2d 26 442 Div. Cir. 119 N.Y.S. 105 Poynter States, drives) ; Manning v. v. United 41 443 Ct.Cl. tract to install cable (1906) ; District, 84, Mountain Terrace Land Co. v. School 124 Wis. 102 N.W. Jones, 242, (1905) (defective heating system) Brewer & ; 165 Ala. 51 So. 356 (1910) ; Drilling Sanitary Eng’r 559 Chico Well Co. of Madison v. Am. Givens, 468, 480, v. Co., (1903) 206 Cal. 274 P. 966 Wis. 95 N.W. 118 1097 (1929) ; Cooper Derby, (city sewage through v. 83 allowed its to run 40, (1910) (architect) ; Conn. A. 75 140 the filter beds constructed the other Estate, 186, party outlets, plant Scholz v. Sehneck’s 174 Ind. at the the whole but (1910) (contract help replaced) ; 91 N.E. Thrall, 730 Williams v. buy railroad) ; Gwinnup 337, (de defendant (1898) v. 101 Wis. N.W. 599 Shies, 500, (1903) furnace) ; 161 Ind. 69 N.E. 158 fective Fuller-Warren Co. v. (contract walk, 683, Shurts, 606, construct a cement re 95 Wis. 70 N.W. value) ; Keys Garben, (furnace (1897) sult of no v. unusable because leak 394, (1910) (con age gas, Iowa 128 N.W. 337 of noxious “was defendant repair building, bound, tract left worse in order to avail herself of before) ; Waters, right defense, than Biedenharn v. her nace, to take out fur ; (1930) transport La. 126 So. 508 Lohmuller and deliver Bldg. Barrett, Miller, [plaintiff]”) Co. 146 Md. Wis. McDonald v. (contract (1925) repair (1888) (expense A. 482 40 N.W. house) ; Meyer Frenkel, completion likely remodel a the en “would exceed (plumbing) ; price.”) Md. 77 A. 369 tire contract Presbyterian Co., Hoopes, Church v. *12 tion, Indeed, very profit, with including existence overhead and benefit. is City. land the defendant’s benefit structure on evidence, from conclu- though far such Finally, strenuously objected . Nordin successfully proves plaintiff sive. If have of a form which would the use verdict benefit, he net should a substantial jury to return a verdict for permitted the that amount.16 given judgment price, full of less than.the ma- City alleged at bar the In the case blank and as a the court filled result contract and nonperformance terial price. space the entire contract Nor- system that the entire presented evidence approach in all-or-nothing din utilized an years inoperable within ten would be jury. to the argument its final repairs. major without construction noted, by recovery previously either As by the trial only permitted financial data pleadings or to the permitting amendment system about that the lacked court showed per- amendment will be even without such in No- per breaking even month of $11.00 proof establishes that mitted where the of 1967. vember recovery clearly is en- party seeking the system was attempts that the All to show However, remedy titled thereto. and the bonds partially by funded revenue enrichment, equitable in na- unjust while by the excluded of such bonds were life ture, grounded on the necessarily be must upon objection Nordin. Ex- trial court presented. the court below proof Neither pert testimony life of as to normal legal theory nor can substitute this court by the system was also excluded such pre- no evidence is for evidence where from objection Nordin. Sim- trial court sented. every attempt prove partial ilarly, value component part system any clearly recog In this case the trial court of witnesses was ob- cross-examination problem pointed it out to nized the by the jected and sustained Nordin such circumstances we counsel.17 Under trial court. intercede to sift the record and will not arbitrarily attempt introduc- to establish values for permit did The trial court system. component parts of the can tion into evidence of Cost Estimate Nos. We costs, say presented the final as that on the facts estimates not chart, progress unjustly enriched. and the which While construction progress may compensa gave a limited view of the have been entitled to some conferred, work, assigned and of the dollar value tion for benefits Nordin sub and, engineer proof the contractor to the various no as to such mitted benefits moreover, kept up proof being elements which were to make the com- sub from pleted However, job. evidence find there no mitted thus that the We component showing part appellant the benefit that a has not established facts City, any finding unjust would have nor there which a enrichment could testimony equates cost of construc- be based.17A gamble, gamble 16. 5A Corbin 1126 at 23-24 on Contracts fearful fearful (footnotes omitted). plaintiff the one hand for the come all; nothing at and ask for all or it say this, probably 17. “I shouldn’t I—but gamble was a fearful for the defendants right very believed from the start— counterclaim, in —in not least soon as the was before the as unjust alternative, of enrichment or value Court, jury, this sewer damages —” just up did come to the standards ac- industry by any exper- ceptable 17A. pointed in that It should be out theory unjust finding I iences. This is not a am to have the did ask then; making or made was a enrichment submitted to the opin- I matter. But mean that was the event. ion of this I felt that —that Court. punch III ficiencies outlined on a How- list. ever, any accep- there indication of Drawing another arrow testimony tance either any fail argues that quiver, Nordin next councilmen or in Council minutes. substantially perform *13 by was waiv it to ure many acceptance In cases by the ar- of the acceptance inspection ed engineer chitect or has been considered suf- pro provisions which job under contract provi- ficient under standard contractual as follows: vided providing sions final decision give Architect/Engineer shall all delegated to the or engineer.18 architect contemplated under orders and directions However, bar, in the case at Section 11 specifications contract and relative this the General Conditions the contract re- of the The Ar- execution work. quired completion to satisfaction of the chitect/Engineer shall determine the architect/engineer and “the owner”. Thus amount, acceptability, and fit- quality, agreement architect/engineer of the kinds of work and ness several simply not conclusive.19 for under paid materials which are to be Lacking direct of acceptance, ques- all this contract and shall decide attempts acceptance to infer from may which arise in relation to said tions payment either or occupancy. use and thereof. The work the construction Payment of all but approximately $2,500.00 Architect/Engineer’s estimates and deci- price the contract weighed must be conclusive, sions shall be final and ex- against Section 26 of the General Condi- cept expressly as pro- herein otherwise tions of the provides spe- contract which any question vided. case shall arise cifically as follows: parties between the hereto to said relative specifications, payment, however, or otherwise, contract the determina- No final or operate tion or shall Architect/Engi- decision to release the Contractor any neer shall or his sureties precedent obligation be a condition from * * * right of the Contractor to receive contract. any money payment or for work under Section 1A4 of the Requirements General any this contract affected in manner or of the provides: contract further question. extent such part Failure on the of the en- resident gineer to reject condemn or bad or Architect/Engineer shall decide the ferior work or materials should not be meaning portion of any and intent to imply acceptance construed of such specifications any plans and of or work or materials. drawings may where the same found Any or dispute. obscure be in differ- Finally, Section 40 of the General Con- regard ences conflicts in their work ditions of the provides contract also as may which arise between the Contractor follows : under this other Contractors Neither the final certificate payment performing for the work Owner shall be nor any provision in the Contract Docu- adjusted and determined the Archi- partial ments nor or entire occupancy tect/Engineer. premises of the by the Owner shall con- undisputed It both Philleo and his stitute acceptance an of work not done engineer, Freese, they testified that advised in accordance with the Contract Docu- * * * accept with the de- ments. (1931) ; Inc., 18. Kovash, Cal.App. Granville v. cf. 5 P.2d 628 (N.D.1962). N.W.2d Annot. A.L.K.. for cases holding that to make decisions of an Id.; Warren, architect/engineer requires Welsh v. 159 S.W. 106 conclusive (Tex.Civ.App.1913) plain language contract, Jenkins Am. and that Surety Co., authority such Wash. should be inferred P. (1907) ; Fischer, general language. Monson minds reasonable no evidence provisions the above Given misrepre question of on the differ by pay- might acceptance to establish is difficult accept thus the contractor and sentation occupancy.

ment, by use and a matter of law. occurred as ance had duty had the contract Nordin Under incorrectly instruct- court trial City, as well While the by the proving acceptance acceptance, that there had Engineering. ed the by Philleo acceptance theory urged on a accep it did so is that such view the better While complain. The now Nordin cannot by determining what which inferred may be tance in the case at bar becomes question actual position person in the a reasonable by the with, theory as used under the it be whether been satisfied *14 misrepre- evidence of there was trial court a rea of fact whether question comes a any acceptance which invalidated City’s sentation place would sonable man performance with the been dissatisfied

this case.20 before, say cannot find we As we person has a not differ on this question of whether minds could reasonable reasonably jury per a issue.21 as to generally Conflicting question. acted case, acceptance was competing of inferences question presented this formance 227 instructions had been jury to the under of whether there questions submitted on the except 9,23 objected acceptance not acceptance which were and whether n There they by misrepresentation. the issue presented insofar as invalidated here, as it fore, asserts it was not error to sub Nordin hold that determination. we of sub question for determinat regard to the mit the issue to did with simply performance, that there stantial ion.24 677, Vogel, 683 : N.W.2d 23. No. reads as follows 20. v. 105 Instruction 9 Shimek accept- ; (NJD.1960) Generally, v. matter Eckert-Fair Co. on the of Constr. 629, (Tex. Flabiano, ance, provision in contract such as 632 a a 342 S.W.2d Haymore Levinson, us, ; Civ.App.1960) 8 makes the before which the one ; 307, (1958) judge 66, architect/engineer P.2d 309 the sole Utah 2d 328 acceptability Roofing quality Enterprise Co. of the & Sheet Metal 502, par- App. binding Corp., work, on the Ohio is valid and v. Howard Inv. 105 engineer (1957) ; Annot., 807, action and that 152 N.E.2d ties (1955). contract, approving the work A.L.R.2d 1119-1121 under such performance con- and manner Finch, 159, 161 21. Mallonee v. Cf. par- conclusive on the is final and tract 1966) Rogers, (Alaska ; Crawford v. fraud, collusion, the absence ties McCoy 1965) (Alaska prevents dis- concealment Co., P.2d 1009-1010 Alaska Brick covery part of the on the failure 1964). (Alaska comply with the contract contractor follows : terms, gross reads as

22. Instruction No. 7 mistake as or such plaintiff part Nome has imply en- of the faith on the bad preponderance proving part gineer burden of his exercise on or failure following issues: judgment. of evidence honest instruction, purposes Nordin Construc- That defendant 1. this For the substantially Company you did tion means a fraud are advised comply of the contract misrepresentation with the terms or concealment substantially perform the and did non- a material contractor required the terms compliance work such architect/engineer contract. misled in acceptance work accepting 2. That the work. by plaintiff question pass Nome or auth- of whether do not We acceptance, you agents, if find an orized correct state- and 9 were Instructions 7 collusion, fraud, was induced ments of law. mistake, concealment, gross all as Annot., defined, Nordin A.L.R. 24. See of defendant hereafter ; Annot., architect/engineer their A.L.R. or of or of (1937) ; agents. Dist. v. Elliott Consol. School authorized IV pre-trial raised at the conference or in the pre-trial order concerning design failure. speci raises several other There is no reference the examination fications of error its brief which will of the witnesses from Engi Philleo briefly at point. discussed neering at the trial concerning design failu argues that this case should be only re.25 The witness to testify on this for a new trial the court remanded because point expert, as an Smith, testified James possible suggesting excluded evidence de- if the construction had properly sign system. failure the sewer and water design done the would have had strong did The court exclude defendant’s exhibit chance to succeed. There is no dispute as rep- “L” which was a letter from Nordin’s to this testimony presented which was resentative, Payne, Engineering to Philleo City.26 This letter called to June Since the place entire trial took engineers attention some possible of. theory, another attempt with no made in problems concerning design sys- of this the examination of witnesses get tem. question of design, and because there however, pleadings, do not contain *15 party complaint third against En- Philleo any to design reference failure. There is gineering, it appear that this issue no defense asserted in the answer related properly was not raised failure; below design any has nor was issue 1967) ; Morton, Busboom, F.Supp. 858, (D.C. Humber v. 426 S.W.2d 227 (Tex.1968) ; Rothberg 1964) City Olenik, Gjelle 554 v. Iowa v. Osceola (Vt.1970) ; Co., 262 A.2d 215, 461 v. fald Constr. 225 Iowa House 279 N.W. Thornton, 428, 199, (1938) ; Rodgers, 76 Wash.2d P.2d 457 590 Patten 430 (1966).] Dunham, (Tex.1968). 209 [See also It Vend S.W.2d 479 is clear that Obligation or’s toas Fitness of Land for the instructions far 7 9 were more Purpose, necessary, a Particular 37 Minn.L.Rev. than 108 restrictive were ad (1952) ; Bearman, Emptor vantageous in Caveat to Nordin. We find the more Realty Epon legal authority Sales of persuasive supports Assaults —Recent Rule, (1961) ; acceptance 14 Vand.L.Rev. 541 view ceptance does not include ac Haskell, Implied system. The Case for an War of latent in defects Quality Property, rant of Appellant, brief, Sales of Real in its cites several (1965) ; Robert, early 53 Geo.L.J. California, Washington, 633 Wisconsin Unwary Buyer: Michigan Case of the Home cases hold that which Housing It, engineer Merchant Did 52 Cornell certificate of the architect or (1967) ; Schwartz, L.Q. 835 Defective to all in conclusive as defects work- Housing: Emptor, manship, patent The Fall otherwise, of Caveat or in the ab- (1970).] 33 ATLA L.J. 122-39 sence of fraud. questionable These cases are of value explanation 25. One for the lack of assertion today, they originally based on design failure is the tactical reason emptor, has, the doctrine of caveat which attempting to insure the favorable tes- part, disappeared for the most timony engineers of Philleo En- warranty impact of modern A law. some gineering. analogous appears what in situation present apply would, course, hearsay trend of tort 26. The cases to letter be warranty implied prove if doctrine of of fitness offered to the facts asserted argues admissibility to new therein. house construction on behalf of its buyer against (and Engineer as ing the builder notice to even Philleo financing California). design in institution believed generally required defects. Such no Builders, Inc., given Weeks v. tice Slavik 384 Mich. to be 257, (1970). 181 N.W.2d owner or the architect [See: 271 the contractor Stewart, 1093, Wawak v. 449 where the latter has 247 reason to believe the Ark. ; Carpenter plans defective, protect S.W.2d 922 v. Don are in order to ohoe, liability 78, 399, 154 Colo. the contractor from 402 for deficien (1964) ; Bethlahmy Bechtel, cies caused 91 Idaho such defects. 17A C.J.S. (1966) ; Schipper 515(b) 856; Contracts Allied Con v. Levitt & Sons, Inc., States, tractors v. N.J. United 381 F.2d (1965) ; Waggoner (1967). A.2d v. Midwest Ct.Cl. 1057 Dev., Inc., (S.D. ern 154 N.W.2d 803 therefore, We, may unnecessary hold an ex- think this I by Nordin. waived it is con- letter of the fact that ception view error to exclude not it was it in which is still evidence, to an issue in the motion went tained for it court, but I do proof. or the under advisement pleadings raised time, except I also it at this make trial be a new also seeks 10 as es—instruction no. last words certain law as to alleged errors cause of final —in the court asks its exceptions to the taken instructions.27 sentence, breach if breach does the attorney by Nordin’s below instructions found, substantially the whole go were as follows: un- or does it relate itself to the contract court, the defendants May please *** phases substantial except giving to the instructions part provides in present 51(a) all of them either Civil Rule and 11 assign giving as error the may impliedly party indicate jury to the or “[n]o * ** instruction, objects he unless an up to decide whether retires consider through its authorized before city of thereto Nome verdict, distinctly matter stating the defendant agents found the work of grounds of his acceptable. he and the company objects We which construction ar- objections now objection.” that there is except ground Since ques- than to the gued by Nordin are other inference no evidence reasonable support an contrary evidence to tion sufficient the evidence of kind instruction, appear that Nordin should have it would that instead court objection as to all of the city did in waived that the of Nome instructed *16 except por- requested, as to that accept the defendant structions fact the work of concerning words, No. Instruction 10 company. other tion of construction In have al- subject of whole contract. We there is no issue of fact on the breach the differ. ready reasonable minds could the matter of substantial on which dealt with specific ap- allegations attempt impeachment of error in of 27. The at pellant’s brief are as follows : own architect. their “16. TRIAL TRIAL NEW —ARCHITECT “18. —‘UNSUBSTAN- NEW AGENT OF NORDIN. Instruc- OF THE CONTRACT.’ NOT TIAL PHASES (Record, 3, pp. ERROR tions 575) file 8 our SPECIFICATION OF See appear jury effect, confusingly was, it told that make No. any The 11. agent breach, architect/engincer Nordin is is an of breach a total substantial moneys responsible paid requiring for and that Nordin would be refund of all total City’s gross principle the fraud or mistake of the unknown to to contractor —a agent jury making appear permit to con- law. It did not faulty design very possibility is for there contractor liable real sider City’s supervision might of own which was substan- be a breach and/or architect/engineer, constituting plain of, tial, breach thus which was not a ‘substantially instruction, in in- error so substantial as to result words of justice. Paltin, P.2d 913 Merrill v. the whole contract’. (Alaska 1967). “19. TRIAL —CONFUSING NEW TRIAL BURDEN OF PROOF. See SPECIFI- “17. NEW —COMPLETELY ERROR No. 10. We UNCLEAR INSTRUCTION. Under CATION OF authority preced- pointed cited in the out that the true burden of case earlier Argument plaintiff ing section, proof upon the and that we of contend 3, p. 575) p. 574) (Record, (Record, No. 8 file file instruction instruction No. 7 entirety places correctly proving is so in its as to be the burden of sub- unclear entirely meaningless non-compliance upon and the undefined stantial (Record, expression ‘gross thoroughly Now, con- mistake’ here in instruction No. 11 easily jury 3, p. 577), given fuses and could cause file Nordin is the burden responsible proving acceptance ‘or that Nordin them to feel was design supervision substantially comply did with the con- and/or City’s agent, specifications’ own tract obvious conflict. architect/en- —an gineer. Faltin, This reason even more com- P.2d Merrill v. 913 at pelling again vigorous (Alaska 1967), supra." when we review the any find no error detriment which flows accept must also performance, failure therefrom. in Instruction No. V raised; agency not question

The acceptance in- question whether judgment had After the law properly stated struction court, entered in Nordin and the lower concerning the raised; question bonding company filed a motion for relief fraud situations was proof in burden of Alaska Rule judgment under Civil raised. 60(b).30 alleged for such re grounds permissible catalog these matters should lief a rea suggestion that They error under the doc- sons stated under the rule. included plain be considered as Faltin, mistake, request a (1) for relief because of trine set forth Merrill discovered,evidence, fraud, newly has been consider- (Alaska 1967), (2) (3) ed, equity, any other reason not (5) conclude instructions we plainly as to call for four. are not erroneous included the other court. interference this request alleged The basis for was the discovery after the that the only found for the had entered into a with the United action, City on its cause of but also award Department Health States and Welfare $190,000 ed per for extra work system to construct a and sanitation water argues formed. Nordin now that this ver 200 low-cost homes require so inconsistent dict attached to the over which the case granting of a new trial. We find no error evidence, together per- arose. This refusing grant new trial.28 Department High- mission to the State Marine, v. Land’s of Homer End ways to and the pave one street main (Alaska 1969), court held thereto, were considered tersections that there would waiver of error positive proof construction inconsistency as to verdicts unless a adequacy project. original party issue at the raised such an time denial The standard of review rule adopted returned. This *17 60(b) motion under Rule is whether expeditious order to enable correction of denying in trial court its discretion abused by jury.29 error to the resubmission the motion.31 permitted Nordin cannot be now to take advantage of probably what was a tactical In considering the effect of evidence, part. move on By silence it chose to ac- the trial court noted that the contractor cept verdict; had benefit it of the continuously sought a change in venue, may 28. It inconsistency (3) exists (whether fraud heretofore denom- between the theories of the claim and extrinsic), misrepre- inated intrinsic or City argues. counterclaim. sentation, or other misconduct of an ad- party; verse 29. Washburn, Cundiff v. 393 F.2d 505 (4) judgment void; (7th . 1968) ; Cir. Truckways, Wells cf (5) judgment satisfied, has been Burch, (10th Ltd. v. F.2d Cir. released, discharged, prior judg- or or a 1957). upon ment it is based has been 60(b) part Buie reads as follows: vacated, reversed or otherwise or On motion and such terms as longer equitable judgment is no just, may are party the court relieve prospective application; should legal representative or his from a final (6) any justifying other reason relief judgment, order, proceeding for the operation judgment. from the of the following reasons: Village; Inc., 31.Gravel v. Alaska mistake, inadvertence, surprise or (Alaska 1967) Alaska Truck neglect; excusable Transport, Inc. v. Inter-Alaska Credit (2) newly discovered evidence which Service, Inc., (Alaska P.2d by diligence due could not have been 1964). discovered in time to move for a new 59(b) ; trial under Rule ports City to ad- City, by were used obtain of the vigorous objections

over expand system financing ditional for a view City argued and that the years some two before trial. Nordin in reach- as aid to premises an apparently grounds abandoned other Moreover, 60(b) the Rule its verdict.32 ing urged original in the pre- motion for relief from judge who heard motion solely and focused on fraud. trial court trial. The at the sided Nordin claims proves this evidence which were acutely problems of the aware system knew the had some positions by the pleadings and posed This, claimed, fraud, value. by his establishes shown This is parties. taken urged since this suit that the motion.33 hearing comments system has no value. the “new” evidence felt that The court to this is found answer contention suggested weighty quality was not legal throughout stance assumed presented at and that evidence by Nordin these proceedings forty the addition concerning trial perform- alleged a failure of substantial system the modification houses thing alleg- as ance. This is not the same import. of similar source was water ing if con- no value. Even does decision of that the are of the view We system, cede some limited benefit from the judge denying motion was the trial proof on Nordin show burden discretion, particularly in view his within City’s position such benefit. The Sedwick, 413 of our decision in Patrick v. throughout pleadings consistent (Alaska holding 1966), position permits argument. it to Such evidence, un- properly considered admit some limited benefit from must relate to facts which 60(b), der Rule per- urging substantially failure to while trial. If in existence at the time of inherent No fraud is form the contract. grounds for a new trial that facts it were City’s actions. to the trial have occurring subsequent prophecy, litigation an shown inaccurate facts, do find that the We thus never to an come end.34 asserted, addition fraud. establish We these ally obliged to comment feel In supplemental materials filed reports were dis engineering financial with a motion for reconsideration of the trial. No ex prior coverable trial court’s denial of for relief the motion planation is advanced for the failure to judgment, presented copies dis pre prior cover such evidence to the time engineering reports certain financial and We, therefore, deem system. sented herein. These re- the sewer and water 32.Stuart 8, view of The court denied this granted request but venue motion for the sewer and water filed and took issue with the October for third motion for decision rendered answer 1969, venue, did change on on the basis of the earlier parties be beneficial August 26, for this motion and 7, 1966, in Oles, change support a view of the of premises reach was City requested in second venue, his by Judge change unchanged. 1969, of his second venue because denying motion for affidavit of March motion for should be allowed subsequently stated and the decision portion of venue was premises. jurors. Sanders on The change of view of position original on motion change a view ruling, of court jury. A 34. 3 Barron & 33. See note was 59.08 the trial previous & Procedure position lief 1958) court concealment 1966). Sedwick, parties Anchorage, The from the “new evidence” not ; ^[3] could argument *18 stipulated 6A position of new additions judgment. discoverable 17, supra. 413 P.2d at 3784 considering Alaska. clearly § Moore properly Holtzoff, in this case. now inconsistent Federal Practice City (1966) made consider showed deliberate Federal Practice trial be and that motion to the (Wright Patrick The trial such (Alaska held Nordin for system before such rev. re- its in clearly newly-discovered evidence filing a reply claim brief oral presenting argument inapplicable.35 number case 1520. It also argues that the issue unjust enrichment VI was not appeal raised on in case number City appeal has as in its cross The 1290; for this reason it is claimed that we refusing erred in the trial court serted erred in discussing this opinion issue and costs. interest pre-judgment to award it filed in this case. agree. We Decem requested interest City The The record discloses case progress 4, 1965, the last date of ber was consolidated with cases 1290 and 1299 represented that time Nordin payment. At opinion by an order for which we entered under the contract been all work on order, This 1971. dated some June City’s of ac cause performed. Since three and one-half months after oral ar accrued, pre-judgment inter tion had then gument, was request entered at the of Nor- unless been awarded est should have din. order specifically provided that find, reason, such do not an some which we no further oral argument would be heard injustice. do Fairbanks award would an by us. arguments Nordin’s in case 1520 DeLima, Inc., 483 Inc. v. Morton Builders fully considered in reaching our de 1971); v. Phil (Alaska State cision, for we had a separate pre record (Alaska 1970). lips, 470 P.2d pared in case 1520 which consisted of a grant refused to costs to The trial court transcript of all oral arguments and all par- both City ground that since on papers written presented to the trial court. City their prevailed ties as to claims Additionally, we considered Nordin’s and that a costs. find not entitled to We was the City of Nome’s briefs. These did reading Rule too of Civil far restrictive depart from position taken in the trial simple balancing the re- 54(d).37 A court by party. each party makes it covery in favor of each In case number 1290 the record and City prevailing party that the clear briefs disclose that the issue unjust in this and should lawsuit38 enrichment was raised in the statement awarded costs. points appeal on in favor briefs of Nor- din and affirmed with Nome. The that it be modi- issue directions unjust enrichment as a fied to reflect the basis additional reversal award of page raised at 55 of terest and Nordin’s conformity costs in brief. with this This argument opinion. answered of Nome on pages 25-30 brief, of its RABINOWITZ, participating. J., not was treated further in reply brief of ON PETITION FOR REHEARING pages 8-11. In its petition for rehearing, Nordin as- It hereby ordered that the Petition for serts that it was denied the opportunity of Rehearing is denied. Montgomery Thomas, Ward v. $173,000.00 recovered counterclaim (Alaska 1964). for extra work. *19 attempted to introduce evidence at 54(d) provides part: 37. Civil Rule concerning trial revenue bonds express Except provision when there- system, but all such ex for is made either a statute objection posi cluded on of Nordin. The rules, these shall be state costs tion now taken Nordin is inconsistent prevailing allowed as of course to the previous position with its and our re party unless the court otherwise directs. view could be limited basis. Sons, Moore, See State, Merl F. Thomas Federal Practice 54.70 [4] Inc. (Alaska 1964) ; cf., (1966) ; P.2d Buza Columbia Knight, (Alaska Co., Mitchell v. Lumber (Alaska 1964). 1964). money paid 36. The recovered all ($1,351,335.60) to Nordin and Nordin