Carter v. Franklin County Road Improvement District

• Decision Date: 06 March 1922
• Docket Number: 195
• Citation: 238 S.W. 69,152 Ark. 302
• Parties: CARTER v. FRANKLIN COUNTY ROAD IMPROVEMENT DISTRICT
• Court: Arkansas Supreme Court

238 S.W. 69

152 Ark. 302

CARTER v. FRANKLIN COUNTY ROAD IMPROVEMENT DISTRICT

No. 195

Supreme Court of Arkansas

March 6, 1922

Appeal from Franklin Chancery Court, Ozark District; J. V. Bourland Chancellor; reversed.

Decree reversed, and judgment rendered.

Coleman Robinson & House, and Saye & Saye, for appellant.

1. By its amended answer, which, in so far as it is inconsistent with the original answer, supersedes it, appellee admits its organization as a road dstrict, the appointment and qualification of its commissioners, and the execution of the contract sued on. An amended and substituted pleading supersedes the original. 103 Ark. 345; 31 Cyc. 465; 21 R. C. L., Pleading, § 136.

2. Plaintiff is entitled to recover under the quantum meruit rule as laid down in Morgan Engineering Co. v. Cache River Drainage District, 115 Ark 437, and in Gould v. Toland, 149 Ark. 476.

3. The work of the contracting engineers was approved and accepted by the board of commissioners, by the county court, by the chairman of the State Highway Commission, and the State Highway Engineer, and in the absence of evidence of dereliction on their part, the presumption must be that they accepted and approved only work that was properly done. 135 Ark. 353.

4. Applying the rule in the Morgan Engineering Company case, supra, appellant is entitled, under the uncontradicted evidence, to judgment for one-half of 5 per cent. of the total estimated cost of constructing the improvement, and interest thereon at 6 per cent. from the date of the filing of the estimates of costs, preliminary plans and specifications, in the county clerk's office.

5. If however, Gould v. Toland, supra, may be said to disapprove the rule in the former case, and the quantum meruit rule must be applied strictly to this case, then appellant has sustained his claim, by evidence which is not disputed, to judgment for the sum of $ 3,529.77, with interest as stated above.

6. There was no objection raised in the lower court, either before or at the trial, that there was no bill of particulars submitted with the complaint. The right to complain on that ground must be treated as waived. 31 Cyc. 583; 47 So. 23; 21 R. C. L., Pleading, § 44.

J. P. Clayton and John W. Newman, for appellee.

When the appellant made the preliminary survey and estimated the probable cost, and advised the commissioners to abandon the project, they inquired of him what it would cost to settle with him, and he said $ 1,500. He now asks for $ 3,667.75 on a quantum meruit basis. He necessarily had to admit that the contract goes out upon the abandonment of the project. 106 Ark. 39; 119 Id. 188; 127 Id. 1; 232 S.W. 947. Since he admits advising the abandonment of the work, the contract may be considered as rescinded by mutual consent.

The use of the contract as of evidentiary value in fixing the compensation of the plaintiff, as was done in the Morgan Engineering Company case, 115 Ark. 437, can no more be made applicable in this case than in the Gould v. Toland case, 149 Ark. 476. This compensation must be determined from evidence aside from the contract, and to that end the testimony as to the time consumed and the amount of work done, as well as the expenses incurred in doing the work, should be clear and definite, and not mere estimates and guesses at expenses, values and profits. We insist that a showing should have been made as indicated in the dissenting opinion in Gould v. Toland, supra.

MCCULLOCH C. J. HART, J., dissenting.

OPINION

MCCULLOCH, C. J.

The plaintiff, H. R. Carter, sued in the circuit court of Franklin County as the survivor of a copartnership, composed of himself and another professional engineer, to recover for services performed for the defendant, Road Improvement District No. 2 of Franklin county, preliminary to the improvement of a public highway in accordance with the purpose of the organization of the district, which was formed under general statutes. (Crawford & Moses' Digest, § 5399, et seq.) The cause was transferred to the Chancery Court by agreement of the parties, and the plaintiff has appealed from a final decree for the recovery of a sum less than that claimed in the complaint.

Preliminary surveys, plans and specifications were furnished by the State Highway Commission as provided in the statute (Crawford & Moses' Digest, § 5400), to be used in the organization of the district, but, after the organization had been completed by proper orders of the county court, the commissioners employed plaintiff's firm to do the engineering work.

There was a written contract entered into between the commissioners and plaintiff's firm of engineers to do all the engineering work, both preliminary and supervisory, for a compensation of 5 per centum of the actual cost of the construction of the road, 50 per centum of the entire amount of compensation to be paid when the plans and specifications were completed, and the balance in installments during the progress of the work. The form of the contract was precisely the same as that involved in other cases on this subject which have heretofore been before us for consideration. Morgan Engineering Co. v. Cache River Drainage District, 115 Ark. 437, 172 S.W. 1020; Gould v. Toland, 149 Ark. 476, 232 S.W. 434; Bowman Engineering Co. v. Arkansas-Missouri Highway District, 151 Ark. 47, 235 S.W. 399. In each of those cases it was decided that this form of contract did not constitute a separate contract for services performed in preliminary work of the district, and it was also decided that the specification for payment of a given percentage when the plans and specifications were completed did not constitute a contract fixing the price for those services, but merely constituted a specification of the time of payment.

Upon the ascertainment of the estimated cost of the improvement according to the plans and specifications furnished by plaintiff, it was decided that the improvement could not be made, and the project was abandoned. There was no assessment of benefits ever made in this instance, and as the contract was premature and never became effective, the plaintiff's right of recovery is not based on the contract, but his recovery must be on the quantum meruit. In this respect the case is controlled by Gould v. Toland, supra, rather than by the other cases cited. It was held, however, in Gould v. Toland, supra, that the method and amount of payment fixed by the terms of the contract, while not determinative of the rights of the parties, might be considered as of evidentiary value in determining the amount to be recovered for the services rendered. So the question left for us to determine is one of fact concerning the proper amount to be allowed to the plaintiff for the value of the services rendered by his firm.

The plaintiff sued for the sum of $ 3,667.75, which is one-half of 5 per centum of the estimated cost of the improvement. This claim was resisted by the commissioners of the district on the ground that the services rendered were not worth that sum, and that the claim was excessive. The proof was adduced before the chancellor in the form of oral testimony and properly brought into the record, and the chancellor awarded the plaintiff the sum of $ 750 as compensation for the services rendered.

We are of the opinion that the conclusion of the chancellor in fixing the amount of compensation was on a wrong basis and is erroneous, and that the allowance is inadequate as compensation for the services shown to have been rendered.

The conclusion reached by the chancellor, as expressed in his opinion brought into the record, is that the proper allowance should be on a per diem basis of $ 25 for a period of thirty days. This is a wrong basis, for it fixes the compensation for one man for the given period, whereas, according to the undisputed testimony, the work was done by numerous employees of plaintiff's firm, some of them doing field work and others office work. The conclusion of the chancellor takes no account of any profits to which the engineers were personally entitled to over and above the expense of doing the work, nor of their own skill and business ability in being able to properly supervise the work and construct adequate plans and specifications sufficient to guide the commissioners in preparing for the improvement contemplated.

Accepting the testimony in the light most unfavorable to the plaintiff, we are convinced that he is entitled to the recovery of a sum considerably in excess of that allowed by the chancellor.

The road which was to be improved was slightly over 16 miles in length, in Franklin County, and the improvement was estimated by the engineers to cost the sum of $ 146,709.97. In the estimate made and furnished by plaintiff it is shown that there was to be 10 acres of clearing and grubbing, 7,060 rods of fences to be moved, 67,320 cubic yards of earth embankment, a certain amount of loose rock excavation and a certain amount of solid rock excavation, and an amount of concrete work, drainage and bridge work. The estimate is itemized, showing the amount of the cost of each item of the work and the material.

Plaintiff testified himself as a witness and stated that the field work was done by his brother, who was an experienced engineer, and that the office work was done by his corps of assistants in the office, nine in number, who were engaged about thirty days in doing the office work. He testified in detail as to the method of doing the office work, making the estimates and calculations of the amount of work to be done of each kind, and the cost of the work and the material. He stated that the field work only consisted of running the lines and levels and notations of the acreage of clearing and rods of...