Clark v. Bergen

• Decision Date: 11 June 1953
• Docket Number: No. 9322,9322
• Citation: 75 S.D. 48,59 N.W.2d 250
• Parties: CLARK v. BERGEN et al.
• Court: South Dakota Supreme Court

Page 250

59 N.W.2d 250

75 S.D. 48

CLARK v. BERGEN et al.

No. 9322.

Supreme Court of South Dakota.

June 11, 1953.

John E. Walsh, James T. Goetz, Yankton, for plaintiff-respondent.

Frank Biegelmeier, Yankton, for defendants-appellants.

ROBERTS, Presiding Judge.

The Blacktop Construction Company of Billings, Montana, entered into four contracts with the State of South Dakota to furnish all the materials and do all the work required in bituminous surfacing of portions of the state trunk highway system. A contract thereafter entered into between Myrl Clark and Blacktop Construction Company reads as follows:

'A agreement between Black Top Construction Co., Billings, Montana and Myrl Clark, Tyndall, S. Dak. to furnish and deliver stockpiles on Project Numbers:

                FAP 191 A Day County              2331  Tons
                FAP 95 Faulk  "                   6042   "
                A*B*C & FRM95 A
                FAP's 84 & 184A Spink County      3214   "
                & WPGH 184 A
                FAP's 452     Potter       "      6854   "
                ABC & 127     Sully        "
                154 (pt)      Hughes       "
                at the rate of $2.50 per ton
                

'The stockpiles are to be placed 3 miles from each end of each project, and no further than 6 miles in between. Also agreed to add 400 tons chips to the four projects at the same rate as quoted above.

'Payments to be made within 10 days after Black Top Construction Co. receives it from the State Highway Department of South Dakota from its estimates or any partial payments and a final payment to be made within 60 days after completion of projects by Myrl Clark, Tyndall, S. Dak.'

Myrl Clark instituted this action against the Blacktop Construction Company alleging that he delivered 18,841 tons in compliance with the terms of the contract; that defendants have made payments in the sum of $46,032.50; and that there is owing to the plaintiff the sum of $1,070. Defendants filed an answer and counterclaim denying the material allegations of the complaint and alleging that plaintiff was a subcontractor agreeing to furnish materials called for under the contracts with the state; that by reason of mutual mistake the written contract did not express the full and complete agreement of the parties with reference to the quantities of materials to be delivered and the basis of payment; and that plaintiff has been paid for the full number of tons as shown in the final estimates allowed by the State Highway Commission. Because of the alleged mutual mistake defendants sought reformation of the contract to express accurately and fully the intentions of the parties.

The trial court made comprehensive findings of fact. We quote such of the findings as appear pertinent to a consideration of the contentions presented by appellant: 'That under the terms of the written contract sued on, Exhibit 1, the plaintiff was to deliver a total tonnage of 18,841 tons of road surfacing material on four projects; * * * that the approximate tonnage to be required and as set forth in the contract between the Blacktop Construction Company and the State of South Dakota * * * was used as the basis for arriving at the tonnage of material that the plaintiff agreed to furnish the Blacktop Construction Company as stipulated in said agreement; * * * plaintiff was to furnish the tonnage called for in Exhibit 1 and was to be paid $2.500 per ton for each ton of material so furnished regardless of what payments the Blacktop Construction Company might receive from the State of South Dakota, the plaintiff not being a subcontractor of the Blacktop Construction Company, nor in any manner dependent upon the payments made by the State of South Dakota to the Blacktop Construction Company, the latter contracts being separate and distinct; * * * that on the Day County Project, the Faulk County Project, the Spink County Project, and the Potter, Sully and Hughes County Project two stockpiles, five stockpiles, three stockpiles, and six stockpiles, respectively, were deposited by the plaintiff, and that the plaintiff did furnish, at least, 2,331 tons, 6,042 tons, 3,214 tons, and 6,854 tons on said projects, respectively, and that under the terms and provisions of Exhibit 1, and additional 400 tons of chips on the aforementioned projects was deposited by the plaintiff, which additional 400 tons of material was distributed among the four projects in approximately the same ratio that the stipulated tonnage of said projects bore to the total stipulated tonnage for all four projects; * * * that there is a technical difference in meaning between the words 'sealsand' and 'rock chips', or 'chips'; that no material deposited by the plaintiff was attempted to be, nor was segregated, or kept separate from any other material furnished by the plaintiff, nor did the Blacktop Construction Company attempt in any manner to segregate the material as to quality, or for any other reason, which was furnished by the plaintiff; * * * that the agreement, Exhibit 1, between the plaintiff and the Blacktop Construction Company stated the full and complete agreement between the parties, and there was no oral understanding or agreement in addition thereto'.

The record contains twenty-six assignments of error. These assignments are argued under three propositions raising questions as to whether defendants were entitled to reformation of the contract, the failure of the court to find that plaintiff did not deliver materials of the quality specified in the contract, and the competency of the evidence to sustain the trial court's finding that plaintiff delivered the tonnage called for in the contract between the parties.

Defendants assert that it was orally agreed between the parties that plaintiff would...