Capital City Brick & Pipe Co. v. City of Des Moines
| Decision Date | 18 November 1907 |
| Parties | CAPITAL CITY BRICK & PIPE CO., Appellee, v. CITY OF DES MOINES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
Reversed.
W. H Bremner, M. H. Cohen and W. M. McLaughlin, for appellant.
Read & Read and Woodin & Ayers, for appellee.
The opinion states the case.--Reversed.
Under a written contract with the defendant city, the plaintiff constructed a bridge across the Des Moines river. After the completion of the work and the payment of the stipulated price, this action was brought to recover for extra work and extra material which it was alleged the city by its proper officers had required or requested the plaintiff to furnish beyond and in excess of the labor and material required by the plans and specifications under which the contract was performed. The alleged cause of action is stated in three counts. The case as made by the first count is, in substance that the plans and specifications upon which the plaintiff made its bid and upon which it entered into the contract represent that the city had already made borings at the site of the bridge, and thus located the surface of the solid rock or foundation upon which the bridge was to be erected. It was further stipulated that in case the surface of such rock should be found to be other than as shown by the plans and borings referred to, and the party of the first part was thereby put to extra labor, work, and material in order to make a suitable foundation, the plaintiff should be compensated therefor. It is alleged by plaintiff that on undertaking to put in the foundations for the bridge, it was found that the borings referred to were not a true indication of the condition of the earth and rock, and, further, that, on making excavations to the rock strata, the defendant city refused to permit the plaintiff to erect piers thereon until at great extra expense and labor excavation had been made in said rock to an additional depth of several feet.
In the second count of the petition, the same matter is stated, though in somewhat different form, and it is further alleged that in making its bid and entering into its contract for the erection of the bridge, plaintiff relied upon the representations made by the officers and the agents of the city as to the character of the soil and the distance from the surface to a suitable rock foundation, which representations afterwards proved to be untrue and misleading, thereby causing the plaintiff great damage.
The third count set up a claim for damages because of a suspension of the work by order of the officers and agents of the city, but this claim was by the trial court withdrawn from the consideration of the jury, and we need not further consider it.
The fourth count of the petition states that the contract plans and specifications called for the use in constructing the bridge of a large quantity of iron ribs one-fourth of an inch in thickness, and that, after the work had been entered upon, the defendant's officers and board of public works requested and required the plaintiff to make use of iron ribs of a thickness of three-eights of an inch, instead of one-fourth inch, as required by the plans, and that the additional cost and value of the iron thus used amounted to a large sum, for which recovery is sought. The defendant denies each and all of the claims thus made against it, and alleges that plaintiff has waived its right to assert such claims, and that the action thereon is barred by the failure of plaintiff to present them to the board of public works of the city of Des Moines prior to the final settlement between the parties, as it was required to do under the terms of the contract. There was a trial of these issues to the court and jury, and a verdict returned in favor of plaintiff for the sum of $ 12,075. The defendant's motion to set aside the verdict and for a new trial was overruled; and, judgment being rendered on the verdict, the defendant has appealed.
While the record transmitted to this court is very voluminous, the material questions presented by the appeal are comparatively few so far as the merits of the controversy are concerned. The arguments of counsel are largely devoted to the claim stated in the first and second counts of the petition growing out of the alleged extra labor and expense occasioned by the character of the soil and rock through which excavation was made for the foundation of the bridge. The specifications upon which the contract was at first prepared contained a clause in the following words: It further provided that the excavation for abutments and piers should be carried to solid rock. In the body of the contract, as distinguished from the specifications, is also found the following clause:
The said party of the first part further agrees to perform said work in strict accordance with this contract, and with the plans and specifications hereinbefore referred to, for the sum of seventy-four thousand nine hundred dollars ($ 74,900), which shall be in full compensation for the cost of the entire work; and the city of Des Moines shall not be liable to the said party of the first part for "extras" of any kind, nor for any damage which he may sustain by coming in contact with rock, sand, water or any other unforeseen material or obstruction, nor for any damage by the elements before the work is completed and finally accepted by the city, nor for delays in the completion of said work except as herein otherwise provided; it being expressly understood that the contract price above specified shall be in full for all work and material furnished under this contract.
When the contract was submitted for the signatures of the parties, some difference of opinion was disclosed as to the meaning and effect of the original draft of the instrument, and, after considerable discussion, there was added thereto certain provisions entitled "addenda," among which was the following:
The plans and specifications for the bridge show that five (5) borings have been made by the city of Des Moines locating the surface of the solid rock for the foundation. It is agreed that in case the surface of said rock is found to be otherwise than as shown by the plans and borings, and the party of the first part is put to extra labor, work, and material in order to make a suitable foundation, then the party of the first part shall be compensated for the extra work and material as provided in the specifications for the compensation of extra work upon the order of the city engineer; but, if the cost to the contractor is less than that of the construction, as shown by the plans and specifications, the amount of the difference shall be deducted from the contract price.
Both the principal draft of the contract and the addenda above mentioned were then duly executed by both parties, and, with the plans and specifications therein referred to, constituted the final agreement under which the bridge was constructed. The blueprints or copies of the plans furnished by the city to the appellee purport to contain a showing of the borings which had been made at the sites of the abutments and piers and to indicate the character of the earth through which the excavations were to be made, and the depth at which the rock for the foundation would be reached. This showing the plaintiff claims was incorrect and misleading, and that the excavation developed material much more difficult to work, thereby causing increased and unexpected expense in removing the same. Complaint is also made that, when the appellee had carried the excavation down to a solid rock foundation, such as was reasonably contemplated by the contract, the city, by its officers and engineers, insisted that the rock itself should be excavated to an additional depth, and that, in compliance therewith, appellee did extend the excavation to a considerable distance into the rock in excess of the requirements of the contract, which work it is alleged was of a very expensive and difficult character, requiring the expenditure of a large amount of money, for which the city should reimburse the appellee in addition to the stated contract price. There was evidence tending to support this claim, although the amount and value of the extra labor and expense thus incurred is a subject of dispute. Upon this feature of the controversy, the trial court instructed the jury in the following language:
The material question as to counts 1 and 2 of the petition, which you are called on to consider in relation to said contract is the character of the material which was necessary to be excavated in order to reach the rock upon which the foundation was to be laid, as shown by the contract, and as actually found during the work. You are instructed that where parties have entered into a contract with reference to a certain state of fact within the knowledge of one party and upon which the other entirely relied, and the one having the knowledge represented and stated in said contract certain facts to be true, and you find the same were material facts, then and in that case the party so stating and representing such material facts shall be bound by them. And in this case if you find that the plaintiff bid upon the work named in said contract with reference to the plans and specifications, and, relying upon said plans and specifications to be true and correct, he made his bid and entered into the contract referred to, and you further find that the representations on said plans...
To continue reading
Request your trial