City of Osceola v. Gjellefald Const. Co. of Forest City

• Decision Date: 23 October 1935
• Docket Number: 43060.
• Citation: 263 N.W. 1,220 Iowa 685
• Parties: CITY OF OSCEOLA v. GJELLEFALD CONST. CO. OF FOREST CITY et al.
• Court: Iowa Supreme Court

263 N.W. 1

220 Iowa 685

CITY OF OSCEOLA v. GJELLEFALD CONST. CO. OF FOREST CITY et al.

No. 43060.

Supreme Court of Iowa.

October 23, 1935

Appeal from District Court, Clarke County; H. H. Carter, Judge.

Action at law by city of Osceola to recover damages which it claims because of the failure of the defendant, Gjellefald Construction Company, to perform a contract for the construction of improvements to the city's waterworks system. A motion of the Gjellefald Construction Company to strike and to require the petition to be made more specific was overruled by the court, and said defendant appeals.

Reversed and remanded.

Thomas & Loth, of Fort Dodge, for appellant and for AEtna Casualty & Surety Co.

O. M Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, for appellee.

DONEGAN, Justice.

In the fall of 1933 the city of Osceola entered into a contract with the defendant, Gjellefald Construction Company, whereby the construction company undertook to build a dam, filter spillway, and reservoir for the waterworks system of said city according to certain plans and specifications which were made a part of the contract. The work was apparently completed and the city took possession of it and proceeded to use it. In February, 1935, the city commenced an action against the construction company and also against AEtna Casualty & Surety Company, the surety on the construction company's bond, for damages alleged to have been suffered by the city because of the failure of the construction company to perform its contract. To the petition filed by the plaintiff city the construction company filed a motion to strike certain statements of the petition, and, subject to the ruling on this part of the motion, to make the petition more specific. Upon hearing, the trial court overruled the part of the motion asking that parts of the petition be stricken, and also overruled the part of the motion asking that the petition be made more specific, but ordered the plaintiff to amend its petition and set out an itemized statement of the repairs which it claimed it had made and the costs thereof. From this ruling of the trial court, the defendant construction company appealed.

A motion of the appellee to dismiss the appeal, on the ground that the ruling from which the appeal is taken is not an appealable order, was submitted and overruled prior to the submission of the case, and we, therefore, do not consider such motion in this opinion.

Appellee also claims, as one of the grounds why the ruling of the trial court should be affirmed, that the defendant AEtna Casualty & Surety Company did not join in the appeal and no sufficient notice was served on it as required by Code, § 12834. The basis of this claim is that the firm of Thomas & Loth were attorneys for both defendants; that the notice of appeal was signed by this firm as attorneys for the defendant construction company and was accepted by this same firm as attorneys for the defendant AEtna Casualty & Surety Company. The statute in regard to service of notice of appeal, section 12837, Code 1931, provides that " An appeal is taken and perfected by the service of a notice in writing on the adverse party, his agent, or any attorney who appeared for him in the case in the court below, and by filing said notice with return of service indorsed thereon or attached thereto with the clerk of the court wherein the proceedings were had." We think the record clearly shows that notice of appeal was served upon the AEtna Casualty & Surety Company by service upon the attorneys who appeared for it in the lower court, that it was properly addressed and service accepted by these attorneys, and that it was filed with the clerk of the trial court, as required by the statute. We find no basis for dismissing the appeal on the grounds contended for by appellee.

The portion of the petition alleging a breach of the contract and bond is as follows:

" That the dam and spillway were not properly settled, tamped and made water tight, and they were so built that they settled, dropped away from the cement facings thereon, leaked, and are in danger of being washed out. That they were not properly covered and faced with cement. That the cement used was not of sufficient thickness, richness or construction so that it would hold water or to keep said cement in place and that water leaked through the same and was about to wash out the said dam and spillway.

That plaintiff was compelled to repair said dam and spillway at a large expense to keep the same from washing out and losing all of said work and the water which it has saved.

That the cement broke and settled and had to be repaired, that a large part of it is covered with water and it will be necessary to put in a retaining wall to hold back the water until the dam and spillway can be repaired. That the cost and expense of the retaining wall will be large. That the intake constructed by the defendant Gjellefald Construction Company was not properly constructed. That it was not made of sufficient and proper material. That the work done thereon was not done in a workman-like manner. That the same leaks and that it will cost a large sum to repair, fix and rebuild it.

That the work done on the dam, spillway and the facing thereof and the covering thereon was not done in a workman-like manner and was not made of proper material, and that it will cost a large sum to renew, repair and replace these things."

The appellant in its motion asked that these statements be stricken as conclusions, and, alternately, that the appellee be required to make them more definite and specific in the manner pointed out in the motion. That these statements, as they appear in the petition itself, are conclusions and not statements of fact is quite apparent. In fact, the trial court so stated in his ruling, but held that the exhibits which accompanied the petition and were made a part thereof supplied a sufficient statement of facts to remedy any deficiency in this regard in the petition itself. Aside from requiring the appellee to amend and set out a more specific statement as to the amount and items of damage claimed for repairs that had already been made, the trial court held that the petition sufficiently stated in a general way that the bond had been breached by the use of improper material and by unworkmanlike construction, and that, as the appellant company must know what kind of material it used in the construction of the dam and the manner in which the work was done, these matters were peculiarly within the knowledge of the appellant, and no more specific statement thereof was required.

Under our system of pleading, section 11111, subd. 3, Code 1931, a pleading must plead ultimate facts. " A pleader must plead the ultimate facts in the case. He cannot plead conclusions by themselves. A good pleading consists of the statement of the ultimate facts in the case, and, when so stated, the pleader has a right to plead his conclusion based upon those facts."...