Board of County Com'rs v. William J. Howard, Inc.
| Decision Date | 02 March 1956 |
| Docket Number | No. 5189.,5189. |
| Citation | 230 F.2d 561 |
| Parties | The BOARD OF COUNTY COMMISSIONERS OF WYANDOTTE COUNTY, KANSAS, Appellant, v. WILLIAM J. HOWARD, Inc., a corporation organized under the laws of the State of Illinois, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
J. E. Schroeder and Harold H. Harding, Kansas City, Kan., for appellant.
T. F. Railsback, Kansas City, Kan., and Eugene P. Kealy, Chicago, Ill., for appellee.
Before BRATTON, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
This was an action in the United States District Court for the District of Kansas by appellee William J. Howard, Inc., herein called the contractor, against the Board of County Commissioners of Wyandotte County, Kansas, herein called the county, to recover the sum of $16,671.97 under Count One of the complaint and the sum of $163,087.66 under Count Two thereof, together with interest and costs. A jury was waived and the trial was had to the court. At the conclusion thereof, the court determined that the contractor was entitled to recover but because of the complicated and extensive character of the transactions appointed a master with directions to determine the amount of recovery, make findings and submit his report to the court. This was done and the master filed his report and findings, determining the amount of recovery to which the contractor was entitled. The trial court considered the master's report, made its own findings of fact and conclusions of law and based thereon entered judgment for the contractor for $16,671.97 on the First Count and $136,656.47 on the Second Count and for costs, including the fees and expenses of the special master.
The controversy arose out of a contract between the county and the contractor for the partial rebuilding of a bridge over the Kansas River in Kansas City, Kansas, which had been seriously damaged by flood waters. Since the controversy centers entirely around the reconstruction of Pier No. 2 in the bed of the river which had been completely destroyed by the flood, it is not necessary to set out all the items of work in the contract for the performance of which the contractor obligated itself. Neither is it necessary to set out the entire contract price for the work the contractor was required to perform. It is without dispute that all of the contract price except the sum of $16,671.97, for which the contractor sought recovery in Count One, was paid. The amount of $163,087.66 which the contractor sought to recover under the Second Count was for additional expenditures and loss of reasonable profits thereon occasioned by the alleged breach of the county's obligation under the contract.
So far as the questions presented are concerned, it is sufficient to say that the contractor was required to reconstruct, in fact to rebuild, a new pier in the place of old Pier No. 2, which had been destroyed. The contract consists of a formal writing to which is attached the proposals of the contractor and numerous supplemental specifications relating to the various details of the construction, among which were drawings showing in a general way the location of the pier to be reconstructed.
The contractor contends that it was the county's duty through its engineer to set the stakes to determine the center line of all piers. The county on the other hand contends that the contractor was furnished with adequate plans and specifications showing exactly the distances between all piers to be constructed; that under the contract and general and supplemental specifications it was the obligation and duty of the contractor to determine where the new pier was to go; and that notwithstanding its engineers pointed out the spot where the new pier was to go, the contractor was nonetheless charged with determining the location of the new pier.
The contract provided for the relocation of Pier No. 2 at the same point where the destroyed pier had been located. Prior to beginning work a representative of the contractor and the engineer representing the county went to the site of the bridge where the engineer pointed out to the contractor's representative the spot where part of the piling from the old Pier No. 2 showed in the river and told him the new pier should be built in the same place the old pier had been built. He pointed out the location of the pier from the old sheet piling and the ripples of the water which could be seen, and told him, "The new pier goes where you see the old pier there, restricting the use of the word location to the exact limited area that the pier covered." Rebuilding of new Pier No. 2 was begun at such point.
After a great deal of time and effort had been expended at this location, it was discovered that it was not the point where Pier No. 2 must be located. It was approximately 28 feet from such point. Work there was discontinued and work was begun and prosecuted to completion at the corrected location. The entire controversy centers around who was chargeable with this error.
The trial court found that it was the duty of the county to furnish the correct site for the work and to determine the correct center line of the pier.
The contract made the standard specifications of the Highway Commission, as modified by a set of printed supplemental specifications, a part of the contract. Section 5.6 of the standard specifications of the Highway Department provides that "In case of bridges, if requested by the Contractor the Engineer shall set stakes determining the centerlines of all piers, pedestals or abutments, * * * The Contractor shall construct the work in accordance with the Engineer's stakes and marks, * * *" This is the specification upon which the contractor relies. It takes the position that when the engineer pointed out the spot where the new pier was to be constructed it was duty bound to comply with such designation. The county on the...
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