Clark v. The Board of County Commissioners of The County of Kingman
| Decision Date | 10 May 1924 |
| Docket Number | 25,562 |
| Citation | 116 Kan. 201,226 P. 240 |
| Parties | C. L. DOLMAN and C. C. CLARK, a Copartnership, etc., Plaintiffs, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF KINGMAN, Defendant |
| Court | Kansas Supreme Court |
Decided January, 1924
Original proceeding in mandamus.
Motion sustained.
SYLLABUS BY THE COURT.
1. CONTRACT--Building County Bridges--Cost of Excess Material and Additional Work--To Be Determined by Arbitration. Under a contract for building county bridges, it was essential to a claim by the contractor for the cost of additions and requirements in excess of those provided for in the contract that they should be agreed to in writing by the parties and be approved by the state highway engineer before such materials were furnished or work was begun.
2. SAME--Terms of Contract Not Followed by Contractor--Waiver. The action of a contractor in furnishing excess material and doing additional work without obtaining such written agreement therefor will ordinarily operate as a waiver for such excess material and work.
3. SAME--Stipulation for Arbitration Incomplete and Indefinite--Not Enforced by Mandamus. The following stipulation in the contract for arbitration, namely:
is held to be incomplete and indefinite and not such an agreement as can be enforced by mandamus.
4. SAME--Agreement for Arbitration Revocable by Either Party. Such an agreement for arbitration, if valid, is one that may be revoked by either party before an award is made.
5. SAME--Mandamus Not a Remedy for Collection of Debts or Damages. Mandamus is not an available remedy to recover debt or damages, and ordinarily obligations arising merely on contract cannot be enforced by mandamus.
6. SAME--Mandamus Will Not Lie Where There is Adequate Remedy at Law. Nor will mandamus lie where there is an adequate remedy in an ordinary civil action.
F. Dumont Smith, of Hutchinson, and Leonard S. Ferry, of Topeka, for the plaintiffs.
C. B. Griffith, attorney-general, and Clark A. Wallace, county attorney, for the defendant; Charles C. Calkin, of Kingman, of counsel.
OPINION
This is an original proceeding in mandamus to compel the commissioners of Kingman county to submit a controversy alleged to have arisen as to the construction of county bridges to arbitration.
Plaintiffs allege that the commissioners of Kingman county entered into a contract with them for the construction of three bridges in the county of Kingman in accordance with standard specifications prepared by the Kansas state highway commission, which included the quality of gravel and cement to be used in the concrete work; that from the outset the county engineer of Kingman county acting for and in behalf of the commissioners, arbitrarily required the plaintiffs to use a much larger proportion of cement than was required by the specifications, and that this requirement damaged them to the extent of $ 10,000; that the county engineer made mistakes in the estimates as to the amount of rock to be removed and compelled the defendants to do excess work in that regard, to their damage; that the county engineer arbitrarily compelled plaintiffs to drive piling to a much greater depth than was required by the specifications, thus occasioning plaintiffs loss and damage; that by reason of these requirements, technical disputes have arisen between the plaintiffs and the county engineer, and upon the completion of the bridges when the plaintiffs presented to the board a bill for their extra expense and damage caused by the unjust requirements of the county engineer, and demanded payment therefor, payment was refused by the board. It is further alleged that the board adopted the theories of the county engineer, and the disputes between the plaintiffs and the defendant turned almost exclusively upon the technical questions mentioned whether the requirements as aforesaid made by the county engineer were legal or illegal under the contract and specifications. The specifications, which were a part of the contract, among other things, provided:
It is alleged that upon a written demand for the submission of the disputed questions between the parties, the board refused to enter into arbitration. Plaintiffs aver that they have no adequate remedy at law except by mandamus, to compel the board to submit the disputed questions to an arbitration as the contract provides.
On a motion to quash the alternative writ defendant presents several grounds: first, that if it be assumed that the arbitration agreement is valid, it is not shown by the averments of the writ, that there has been a compliance with conditions precedent to a demand for arbitration; second, that the arbitration agreement is not valid and binding upon the parties; third, that if any obligation rests upon the defendant it is contractual merely and cannot be enforced by mandamus; fourth, that the plaintiffs have an adequate remedy at law and are not entitled to the remedy sought; fifth, that the remedy invoked is largely discretionary and that under the facts of the case the court, in the exercise of a sound judicial discretion, should refuse the writ.
As to the first ground of the motion, it is insisted that the plaintiffs were not entitled to demand arbitration because in the proposal or bid which was made a part of the contract it was stipulated that no additions, deductions nor charges could be made except by a written agreement with the board approved by the state highway engineer, and further in another part of the contract it is provided that the county engineer may with the approval of the board make alterations in the plans and character of the work, but that if such alterations should result in an increase or decrease of the quantity of work to be performed the contractor should accept payment at certain fixed unit prices, and that if alterations in the character of the work produced increased the cost to the contractor a fair and equitable sum should be allowed to him, to be agreed upon in writing by the contractor and the board before such work was begun, and that before any alterations were made they should first receive the approval of the state highway engineer. In another part of the specifications was a provision that, "should the meaning or requirements of these plans and specifications be in doubt the contractor and the board shall refer the question to the state highway engineer whose decision shall be final and binding on both parties alike." There are no averments in plaintiffs' pleading to the effect that the alterations or requirements of the engineer were brought to the attention of the board before the work was done. There was no averment either that any written agreement as to the additions or changes had been made between the board and the contractor and no allegation that any of them had been approved by the state highway engineer. These were essential requirements of the contract. Plaintiffs allege that more cement was required than was provided for in the contract that there was an excess of rock required of them and that they were compelled to sink the piling to a greater depth than the specifications required. If alterations, additions and requirements were insisted on by the county engineer, the plaintiffs should in compliance with the contract have presented the matter to the board and entered into a written agreement respecting them and should also have secured the approval of the same by the state highway engineer. The contract appears to have been drawn in conformity with the statute which provides for the supervision of the building of bridges and culverts by the state highway engineer and that no contract shall be binding on the county unless the cost of the same has been approved by the county engineer or the state highway engineer. (R. S. 68-1111 and 68-1112.) The failure of the plaintiffs to observe these requirements necessary to an adjustment of any addition or excess may be regarded as a waiver of any right...
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