City Of Portsmouth v. Nicola Building Co.

• Decision Date: 30 December 1922
• Docket Number: 17312
• Citation: 140 N.E. 174,106 Ohio St. 550
• Parties: The City Of Portsmouth v. The Nicola Building Co.
• Court: Ohio Supreme Court

140 N.E. 174

106 Ohio St. 550

The City Of Portsmouth v. The Nicola Building Co.

No. 17312

Supreme Court of Ohio

December 30, 1922

Municipal corporations-Public contracts-Alteration or modification-Sections 4331 and 4332, General Code-Plans and specifications changed during progress of work-Proportionate increase or decrease in cost-Rights of contractor under contract.

1. The provisions of sections 4331 and 4332, General Code, have no application to a duly executed contract for the construction of a public improvement, which contract expressly provides for subsequent changes in the plans and specifications, which it is contemplated will become necessary in the progress of the work, and fixes the price to be paid therefor.

2. Where a contract for a public improvement was duly executed by a city, which therein expressly reserved the right to re- quire changes in the plans and specifications during the progress of the work, upon the condition that a proportionate reduction be made from the contract price if the quantity of work or material be, thereby reduced, or a proportionate increase in the contract price if the amount of the work and material be thereby increased, and thereafter physical con- ditions encountered did require such changes, which were made as directed in writing by the city pursuant to the requirements of the contract, the contractor is entitled to re. cover for such additional work and material in accordance with the terms of the contract.

The pleadings in this case are quite voluminous, but a comparatively brief statement of the facts may be made, which will suffice for the purpose of a discussion and determination of the questions of law involved.

The defendant in error, who was the plaintiff in the action in the trial court and will be so referred to hereafter, entered into a contract with the city of Portsmouth, hereafter referred to as defendant, for the construction of what is known as Division Number 1, under the plans and specifications of improvements to and enlargement of the waterworks plant of that city. Said contract was in all respects duly executed, and a considerable portion of the work required thereby had been performed when it was first ascertained, both by the plaintiff and the defendant, that because of the presence of quicksand it would be impossible to lay a 36-inch, cast-iron, intake pipe, provided for in the specifications, from the bottom of the pump-well for a distance of about 200 feet into the Ohio river, and that it would be necessary to modify and change the plans and specifications in that respect and drive a 42-inch tunnel constructed of concrete, under a system known as "compressed air," through an air lock instead of laying the 36-inch, cast-iron pipe. The plaintiff was accordingly directed to make the required change, and such change was made, and the plans as changed were carried out.

The record discloses that prior to the execution of the contract and prior to the filing of bids there-for by the plaintiff and other prospective bidders, the service director of the city gave to each, in writing, a statement showing the kind and condition of strata, to the depth of 75 feet, being red clay, sand, blue clay, hard-pan, gravel and shale, and stated that such were found in digging a test well at the new waterworks site, and that the clay was solid enough to bear the chimney at a depth of four or five feet; and, further that 18 test holes bored to the depth of the reservoir disclosed nothing but clay to excavate. The plaintiff was paid the amount of its contract, but was denied compensation for additional work made necessary by reason of the change heretofore referred to. It brought this action to recover the sum of $35,668.55, claiming that in proportion to the amount plaintiff was to receive upon its contract, the amount of work performed and material furnished by it was increased in that sum. The plaintiff claimed that it relied upon the representations above made and based its bid upon those facts. The contract between the parties contained the following provision:

"It is further covenanted and agreed that if more work or material is required and ordered by said engineer than is mentioned in the specifications, or if less than the amount therein. contained, are required, the above sum of seventy-four thousand one hundred and thirty-five and no/100 dollars ($74,135.00) shall be added to or deducted from at and after the prices set forth under the title `Extra Work' in the specifications. The contractor must follow strictly, and without delay all instructions and orders given by the engineer in the performance of his work. The city reserves the right to increase or decrease the quantity of work, or any part thereof, to the amount found necessary. No allowance will be made in case of increase for any sum above the rate of price bid, nor in case of decrease for any real or supposed damage or loss of profit occasioned by such diminution. The time fixed for the completion of the work will be proportionately increased or diminished. The city also reserves the right to change or modify the plans or specifications for any portion of the work, or change the location of reservoir, pumping station, filtration plant etc., by notifying the contractor of its intention, and the contractor shall in such case follow the instructions of the engineer, and the contractor shall make no claim for damages or loss of profit,...