Carroll Contracting Co. v. Gilsonite Roofing & Pav. Co.

• Decision Date: 03 February 1903
• Citation: 71 S.W. 1119,98 Mo. App. 78
• Court: Missouri Court of Appeals
• Parties: CARROLL CONTRACTING CO. v. GILSONITE ROOFING & PAVING CO.

71 S.W. 1119

98 Mo. App. 78

CARROLL CONTRACTING CO. v. GILSONITE ROOFING & PAVING CO.

Court of Appeals at St. Louis, Missouri.

February 3, 1903.

APPEAL—FINDINGS OF FACT—CONTRACT—CONSTRUCTION.

1. Where a contract provides for an excavation, and states that it will be necessary to pile the same, as there is a stratum of sand having the nature of quicksand, and it will be necessary to keep this out to prevent the banks from caving in, plaintiff is entitled to recover compensation at the agreed price per cubic foot for all the earth necessarily removed from the hole, making it of the required size, even if part of the removed material flowed into the excavation from the sides as the work progressed.

2. The question being whether material taken from a hole, which plaintiff contracted to excavate by the cubic yard, ran into it because of his negligent and improper way of doing the work, so that he was not entitled to compensation for the extra excavating necessitated thereby, the finding thereon, on conflicting evidence, cannot be disturbed on appeal.

Appeal from St. Louis circuit court; W. B. Douglas, Judge.

Action by the Carroll Contracting Company against the Gilsonite Roofing & Paving Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Lyons & Swarts and Mr. Hoolan, for appellant. Kehr & Tittman, for respondent.

GOODE, J.

Most of the important facts of this controversy will be found in the following findings by the circuit court: "Defendant has requested a special finding of facts in this cause. The court, therefore, under section 695, Rev. St. 1899, states in writing its conclusions of fact from the evidence in the cause as follows: The St. Louis Transit Company, intending to erect a smokestack on Second and Salisbury streets, in St. Louis, to be used as part of its power house near that point, caused a plan and specifications of the proposed work to be prepared. The smokestack was to be 15 feet in diameter at the base and to be 192 feet high. It was to be riveted to and rest on a solid block of concrete 30'×30' square, carried down to rock. This involved the making of an excavation to rock to receive the concrete. Messrs. W. D. Boyce & Co. were the engineers of the transit company, and prepared the plans and specifications, and were to superintend the work. The defendant is a business corporation engaged in doing concrete work, and the plaintiff is a like corporation engaged in doing excavating. Defendant was desirious of bidding on the concrete work required by the transit company, but, in order to get it, was also required to take the excavating; but, as that was not in its line of business, it invited bids from others for doing that part of the work. Plaintiff's attention being brought to the subject, a conversation between Mr. Carroll, its president, and Mr. Paul Fenske, the superintendent of the defendant, followed, in which Mr. Carroll was told to go to the office of Boyce & Co. and examine the specifications, and give the Gilsonite Company a bid on the work of excavation. He was told that the Gilsonite Company would base its bid to the transit company on his bid for the excavation. The transit company had some time before erected a similar smokestack at its power house on Vanderventer avenue, the concrete work of which had been done by the Gilsonite Company and the excavation by the Carroll Company. Mr. Carroll examined the specifications, and thereupon submitted to the Gilsonite Company the following proposal, which the latter accepted, namely: `St. Louis, Mo., Dec. 27, 1899. Gilsonite Roofing & Paving Co., City—Gentlemen: We hereby agree to do the necessary excavating of a hole 30×30 feet by depth to rock for a chimney foundation at the power station of the St. Louis Transit Company, Broadway and Salisbury street, according to plans and specifications prepared by Messrs. W. D. Boyce & Co., engineers and superintendents, under the heading of "Excavation," at the rate of one dollar and seven cents ($1.07) per cubic yard. The hole to be turned over to you ready for concrete. Respectfully, Carroll Contracting Company, by James Carroll, Prest. and Treas. Accepted: January 11, 1900. Gilsonite Roofing & Paving Company, by P. B. Fenske.' The specifications referred to above are as follows: `Excavation: The excavations for the foundation to be thirty feet (30) square, and approximately thirty feet (30) deep from the present grade at power station site. The excavations are to extend to the solid rock, which is approximately between 30 feet and 35 feet below the grade line. When rock is reached, all shale or rotten stone shall be taken out, leaving a perfectly clean and smooth surface to receive the concrete. This excavation must be thoroughly braced throughout, so as to insure no caving in of any of its walls. It will be found necessary to use either sheet piling in making these excavations, or a crib, sinking same down as the excavation proceeds, as immediately on the surface of the rock there is a stratum of sand, which, according to borings, has the nature of quicksand. And it will be necessary to keep this dammed out in order to prevent the banks from caving in, and also to be able to put in the concrete. If a crib is used, same must be made 30 feet square on the inside, thus insuring the full size of the foundation as shown. In case sheet piling is used, the same dimensions must be adhered to. The excavations must at all times be kept clear of water, which will probably be found in some quantity, and the walls of the excavations must be thoroughly braced on account of the close proximity to the railroad. All earth excavated for this foundation must be removed from the premises.' And the court finds that the proposal, acceptance, and specifications aforesaid constitute the contract between the plaintiff and defendant, and further finds that all work done by the plaintiff and sued for in this action was done under said contract. The court further finds that plaintiff's work in the effort to carry out the contract was not satisfactory in its rate of progress or its quality either to Messrs. W. D. Boyce & Co. nor to the defendant Gilsonite Company, and plaintiff was repeatedly warned and cautioned that the work would be taken out of its hands, as well as out of the hands of defendant, unless speedily brought to completion according to the terms of the contract; and thereupon plaintiff requested defendant to do, and the defendant, at plaintiff's instance, did the work, furnished the materials, and advanced the money set forth in its counterclaim herein, except the twenty-five dollars paid to `Mercereau for expert services,' amounting in the aggregate to ten hundred and eighty-eight and 94/100 dollars ($1,113.94); and the court finds that the plaintiff did complete its contract by the aid of the defendant, as aforesaid. And the court further finds that the depth to rock of the excavation proved to be 34 feet 1 inch; that the hole, therefore, which plaintiff agreed to excavate and turn over to the defendant ready...