Corns-thomas Eng'g & Constr. Co v. Mcdowell County Court

• Decision Date: 21 November 1922
• Docket Number: (No. 4608.)
• Citation: 115 S.E. 462
• Court: West Virginia Supreme Court
• Parties: CORNS-THOMAS ENGINEERING & CONSTRUCTION co. v. Mcdowell COUNTY COURT.

115 S.E. 462

CORNS-THOMAS ENGINEERING & CONSTRUCTION co.

v.Mcdowell COUNTY COURT.

(No. 4608.)

Supreme Court of Appeals of West Virginia.

Nov. 21, 1922.

(Syllabus by the Court.)

Error to Circuit Court, McDowell County.

Action by the Coms Thomas Engineering & Construction Company against the County Court of McDowell County. Judgment for plaintiff, and defendant brings error. Affirmed.

Strother, Sale, Curd & Tucker, of Welch, for plaintiff in error.

G. L. Counts, of Welch, Strother & French and G. W. Howard, all of Welch, for defendant in error.

POFFENBARGER, P. The subject-matter of complaint on this writ is the award of a new trial in an action of assumpsit, brought for recovery of compensation for alleged extra work, under a contract for the construction of two concrete abutments and the necessary wing walls for each of two bridges across the Tug River in McDowell county, one of which is known as the Roderfield bridge and the other as the Negro Branch bridge. Under the contract, the plaintiff not only built the four abutments and the wing walls, but also made the excavations for the same, and the work sued for as being extra was done in connection with the excavations for the abutments. The jury returned a verdict in favor of the plaintiff for $15,543.12, which the court set aside.

In the two contracts, one for the work for each bridge, unit prices for excavation and for concrete were adopted. For the work at Roderfield, $5 per cubic yard was agreed upon for the excavation, and $18 per cubic yard for the concrete. For the Negro Branch work, the prices were, respectively, $2.25 and $17.50. This controversy arises out of alleged misrepresentations by a civil engineer, an employee of the county road engineer of McDowell county, to the plaintiff's president and general manager, as to the depth of the excavation for the abutments, made, if at all, before the plaintiff's proposals to do the work were filed. These representations, if made, were that the excavations for the abutments for the Roderfield bridge would be 6 feet in depth and those of the Negro Branch bridge, 6 feet on one side and S feet on the other. They were made upon the assumption that the depths named would carry the excavations to solid rock. Prior to the date on which they are alleged to have been made, some soundings had been made by which it was supposed solid rock had been reached or located at the depths named. It turned out, however, that they went down only to boulders lying on or above the solid rock, which it became necessary to take out, to the end that a better foundation than they afforded might be obtained. For the east abutment at Ro derfield, it was necessary to go about 1 foot deeper, and for the west abutment about 3 feet and 6 inches deeper, than was contemplated. For the east abutment of the Negro Branch bridge, it was necessary to go to a depth of 12.4 feet and for the west abutment, 6.8 feet

This charge of verbal representations as to the depth of the contemplated excavations is supplemented by the further statement that, at the time of the making of the proposals, the engineer also represented that the county court then had no drawings or specifications showing the depths of the excavations. In the testimony of the engineer, there are specific denials of all of these charges. He claims the specifications were filed in the office and were given to all bidders, and he supposes the plaintiff's representative saw them. He does not claim, however, that he knows they were actually in the hands of the representative or that they were tendered to him for inspection. The latter admits that a blueprint purporting to set forth the plans of the masonry for the bridge at Roderfield was shown to him before he filed his proposals for the work, but denies that it indicated the depths of the excavations. With his testimony, he files the blue print or one like it, and it does not specify such depths. There is nothing in the record to indicate that any other working plan for the Roderfield bridge was furnished to the plaintiff; but at some time a blueprint showing the design and specifications for the work at Negro Branch was furnished. The contention of the defendant is that this plan was in its engineer's office at the date of the contract On the other hand, the plaintiff contends it was furnished after the contract had been made and possibly after the work had been commenced. As to when it was furnished, his evidence is indefinite and unsatisfactory, but he positively denies it was produced when he bid on the work. The depths of the excavation, as indicated by that plan, were 8.2 feet for the west abutment and 12.2 feet for the east abutment. There seems to be no controversy as to the depths to which the excavation actually went. They were as follows:

"East Roderfield abutment 9 feet 6 inches, west Roderfield abutment 7 feet, east Negro Branch abutment, 12.4 feet west Negro Branch abutment 6.8 feet."

The excavation at the Roderfield bridge, in excess of what was contemplated, amounts to 113.2 cubic yards. At Negro Branch bridge, it amounted to about 19 yards less than was contemplated, if the blue print, showing the depth of excavation at that point, is binding upon the plaintiff. If it is hot it amounted to about 230 yards more, according to the contentions of the plaintiff. All of the excavation has been paid for at the unit prices, as has also the increasedconcrete work. The basis of the plaintiff's claim is that the increased depth made the work much more expensive and augmented the risk and hazard of the undertaking. In other words, its contention is that if correct depths had been given, the unit prices would have been higher, for the reasons just indicated. Although all of the excavation has been paid for at the unit prices, it is insisted that the increased depths necessitated extra expenditures amounting to more than $15,-000. The plaintiff seeks recovery of this amount plus 10 per cent for supervision, treated as part of the cost. This theory excludes all profit on the alleged extra work and contemplates only reimbursement for actual outlay and compensation for supervision. By its verdict, the jury disallowed the claim for compensation, but allowed the claim for money actually expended in performance of work alleged to have been extra.

Over objections interposed by the plaintiff, the court gave a number of instructions at the instance of the defendant. Although exceptions were taken to the action of the court, in the giving of these instructions, no assignments of error are based upon it. Two instructions requested by the plaintiff were refused. Exceptions were taken to the rulings upon them, but they are not complained of in any assignment of error or argument. In its award of a new trial, the court seems to have proceeded upon one of two theories, lack of right of recovery, by reason of certain provisions of the contract, or excessiveness of the verdict. For the most part, the assignments of error and arguments in support thereof, as well as the argument submitted for the defendant in error, pertain to the right of recovery.

In their negotiations as well as in the making of the contract, the parties used the standard form of specifications and contract, prescribed and printed by the West Virginia state road commission. Exclusive of the index, this form makes a book of 117 large pages, and its provisions relate to contracts for the construction of roads, more than bridges. It sets forth certain definitions of terms, instructions to bidders, award ana execution of contracts, general provisions, construction details, form of contractor's proposal, form of contract, and form of bond. In it the specifications are set forth for all sorts of work, and such of them as are agreed upon by the parties and made applicable to the particular work are adopted by reference in the proposal and the contract. It contemplates the preparation and filing in the local engineer's office, as well as with the state road commission, of working plans for the particular work contracted for, which are adopted in the proposal and contract, by reference thereto. In each of the proposals here involved the contractor offered to make, improve, and build a bridge, according to the plans therefor on file in the office of the clerk of the county court, and in the contract it bound itself to build and complete the work in good workmanlike and substantial manner, according to and in the manner provided by the plans and specifications, and the contract recites that it had examined the plans and specifications. This reference to the plans and the recital of the examination thereof appear in both of these contracts. Although they have very important bearing upon the issues in the case, they are not mentioned in the argument. A stipulation that seems to have impressed the attorneys and the court below more deeply reads as follows:

"The party of the second part declares that it is fully informed as to all conditions affecting the work to be done, as well as to the labor and materials to be furnished for completion of the contract, and that such information was secured by personal investigation and research and not wholly from the estimate of the Engineer, and that it will make no claim against the said county court by reason of estimates, tests or representations heretofore made by any officer or agent of said county court."

There is also a stipulation against liability on the part of the county court for anything in excess of the consideration named in the contract, and one against assertion by the contractor of any claim for loss of anticipated profits by reason of any change or any variation between quantities approximately estimated and quantities of work actually done

Strict application of the terms of each of these contracts to its subject-matter is resisted in argument, upon the ground that the printed form adopted seems to have been prepared for use in contracts...