Christensen v. Iowa State Highway Commission

• Decision Date: 19 September 1961
• Docket Number: No. 50324,50324
• Parties: Charles E. CHRISTENSEN and Mark A. Christensen, doing business under the firm and style name of Christie Bros. Excavating, Appellees, v. IOWA STATE HIGHWAY COMMISSION, H. F. Schroeder & Sons, Ira Van Buskirk & Sons, Ardell M. Smith Co. (Appellant), Hooker Brothers Agricultural Lime Co., Columbus Well Drillers, McCourt General Tire Co., and Hartford Accident & Indemnity Co., Defendants.
• Court: Iowa Supreme Court

Page 573

110 N.W.2d 573

252 Iowa 1351

Charles E. CHRISTENSEN and Mark A. Christensen, doing business under the firm and style name of Christie Bros. Excavating, Appellees, v. IOWA STATE HIGHWAY COMMISSION, H. F. Schroeder & Sons, Ira Van Buskirk & Sons, Ardell M. Smith Co. (Appellant), Hooker Brothers Agricultural Lime Co., Columbus Well Drillers, McCourt General Tire Co., and Hartford Accident & Indemnity Co., Defendants.

No. 50324.

Supreme Court of Iowa.

Sept. 19, 1961.

Smith, Peterson, Beckman & Willson, Council Bluffs, and Prichard & Prichard, Onawa, for appellant Ardell M. Smith Co.

Ross, Johnson, Northrup, Stuart & Tinley, Council Bluffs, and Margolin & Goldblatt, Sioux City, for appellees.

GARFIELD, Chief Justice.

This case well illustrates the wisdom of reducing agreements to writing and the trouble and expense that may result from not doing so.

The appeal presents mainly fact questions.

Schroeder and Van Buskirk were principal contractors to construct part of Interstate Highway 29 in Harrison and Pottawattamie counties. They subcontracted in writing to Smith part of the earth moving and grading. He was to be paid '59 cents per cubic yard of dirt moved to grade * * * to be measured by embankment quantities * * *. Final quantities * * * to be determined by said State Highway Commission.'

On September 20, 1957, the time for Smith to perform his subcontract had expired and the work was not completed. He then orally engaged plaintiffs Charles and Mark Christensen, doing business as Christie Brothers, to haul dirt in trucks to bring at least part of the new road to grade. Plaintiffs offered to move this dirt for 45 cents per cubic yard but Smith agreed to pay 50 cents. Plaintiffs claim the 50 cents was to be paid for each cubic yard of dirt hauled. Smith, however, contends plaintiffs were to be paid 50 cents per cubic yard of embankment quantities in place, just as he was to be paid at the rate of 59 cents per cubic yard for such quantities. This is the main dispute between the parties.

It is agreed there is a good deal of shrink in loose dirt hauled in a truck after it has been deposited on a road grade and becomes more compact. Mark Christensen estimates 25 per cent as the amount of such shrink on this job. Other estimates are higher. Thus the principal controversy is whether plaintiffs are to be paid for the quantity of dirt hauled without deduction for this shrink.

The trial court upheld plaintiffs' version of the method of computing the quantity for which Smith was to pay 50 cents per cubic yard and found plaintiffs hauled a total of 35,508 yards, the quantity claimed by them. After crediting Smith with $10,300 which he admittedly paid plaintiffs and $333, part of what he paid an attorney for some of the truckers plaintiffs employed on the project, judgment of $7,121 was entered for plaintiffs against Smith, together with costs, including attorney fees of $500. See section 573.21, Code 1958, I.C.A.; Grady v. S. E. Gustafson Const. Co., 251 Iowa 1242, 1252, 103 N.W.2d 737, 743. Smith has appealed and may be treated as sole defendant.

I. We will first mention some familiar legal propositions. Although we give weight to the trial court's findings we cannot avoid our duty to review the case de novo. Rule 334, Rules of Civil Procedure, 58 I.C.A.; Grady v. S. E. Gustafson Const. Co., supra, 251 Iowa 1242, 1246-1247, 103 N.W.2d 737, 739, and citations.

Of course plaintiffs had the burden to prove their claim by a preponderance of the evidence. To sustain this burden the evidence to support the claim, when fully and fairly considered, must produce the stronger impression and be more convincing when weighed against the evidence in opposition thereto. Grady case, supra.

Since plaintiffs pleaded an express oral contract they cannot recover upon an implied contract or upon quantum meruit. In re Trust of Spilka, 250 Iowa 1021, 1027, 97 N.W.2d 625, 628, and citations.

II. We refer now to the evidence. The oral agreement under which plaintiffs were employed was between Smith and Charles Christensen in the presence of Boyd, a cousin of Smith employed by him to care for his equipment. Charles testifies, 'Smith was to pay 50 cents a cubic yard for the hauling and depositing. I had no discussion or agreement with Smith that the cubic yardage of dirt would be measured by embankment quantities in place.' Over objection as incompetent, irrelevant and immaterial, he says plaintiffs have never been paid that way on similar projects. On cross-examination Charles testifies no conversation was had with Smith at the time the contract was made in regard to the method of measuring the dirt to be hauled.

Mark Christensen had charge of the work for plaintiffs. This is his testimony: 'I visited with Mr. Smith about the time we started work and mention was made that we were to be paid 50 cents a cubic yard for the dirt we were hauling.

'Q. And that of course was a cubic yard of dirt hauled and not spread or compacted? (Defendant's counsel: Objected to as leading and suggestive.) A. That was without compaction or anything of that nature, just hauled.'

It is clear the last question is objectionable on the ground stated and the answer may not be considered. Further, the testimony is in the nature of a conclusion and does not purport to relate what either party said. Nor does the witness say whether he or Smith made mention 'that we were to be paid * * * for the dirt we were hauling.' On cross-examination this witness testifies, 'To my understanding I was not to furnish compacted dirt. I was to furnish loose dirt, fill clay.'

The above includes all the direct evidence for plaintiffs. Defendant (Smith) says, 'I told him (Charles Christensen) I was prepared to pay 50 cents a yard for that dirt, that I was being paid according to my subcontract measured in place, embankment measure, and he would have to be paid as I was. * * * The price was to be determined by measuring the dirt on the fill after it was completed.'

Defendant's employee, Boyd, testifies, 'Mr. Smith said the measurement was being made by embankment in place on the fill area and Christensen would get paid in the same manner as Smith got paid.' On cross-examination this witness first emphatically denies, but later admits, he signed a statement typed by Mark Christensen on January 20, 1958, about two months after plaintiffs did their last work on the project. The statement, exhibit 18, says that at the time of the verbal agreement between plaintiffs and defendant 'nothing was said about Christie Bros. being paid on a compacted cubic yardage figure.'

This written statement, inconsistent with Boyd's previous testimony, was admissible to discredit or impeach the witness but not as substantive evidence of the facts related in the statement. Law v. Hemmingsen, 249 Iowa 820, 835, 89 N.W.2d 386, 397, and citations; Stevens v. Gear, 240 Iowa 1348, 1357, 39 N.W.2d 408, 414; State v. Powell, 237 Iowa 1227, 1245-1246, 24 N.W.2d 769, 780; Annotation 133 A.L.R. 1454, 1455.

The trial court's findings of fact, filed nine months after the trial, recite, 'The only competent disinterested evidence on this question (whether plaintiffs should be paid for dirt hauled or 'embankment quantities in place') is exhibit 18 * * *. This corroborates plaintiffs' position and it is the court's opinion they have proved their allegations concerning the terms of the verbal contract.' As just stated, the exhibit should be considered only for the purpose of discrediting or impeaching the witness Boyd.

Belt, a trucker employed by plaintiffs on the job, testifies Mark Christensen 'was telling me he hauled the dirt down on the job, compact dirt; I suppose that would be out on the road.' Mark Christensen does not deny this testimony. Belt and other truckers had sued plaintiffs for money due them on the job. This witness had been convicted of grand larceny more than 15 years before the trial.

We have referred to substantially all the direct evidence for defendant as to the disputed terms of the oral agreement. However,...