County of Pocahontas v. Katz-Craig Contracting Co.
| Decision Date | 14 December 1917 |
| Docket Number | 30484 |
| Citation | 165 N.W. 422,181 Iowa 1313 |
| Parties | COUNTY OF POCAHONTAS et al., Appellees, v. KATZ-CRAIG CONTRACTING COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Pocahontas District Court.--D. F. COYLE, Judge.
ACTION to recover an alleged overpayment on a contract for the excavation of a drainage ditch. Verdict for the plaintiff by direction of the court, for the full amount claimed. Defendant appeals.
Affirmed.
Robert Healy, for appellant.
F. C Gilchrist and J. M. Berry, for appellees.
I.
On April 8, 1908, the board of supervisors of Pocahontas County entered into a contract with defendants for the construction and excavation of a drainage ditch in Drainage District No 29 in said county, for an agreed consideration of $ 31,700. On January 31, 1910, after a portion of the work covered by said contract had been performed by the defendant, it developed that certain changes and alterations were necessary in some of the ditches to be dug as a part of said drainage system, and the original contract was modified as hereinafter stated.
On January 31, 1910, the defendant wrote a letter to the board of supervisors of Pocahontas County as follows, to wit:
Subsequently, and on February 11th, the board of supervisors passed a resolution accepting the offer of defendant contained in said letter, the material portion of which is as follows, to wit:
"Therefore be it Resolved: That the report of said engineer so filed this day and the plans, changes, alterations and enlargements recommended by him seem to be expedient and meet with the approval of this board and the same are hereby approved; that all persons whose lands will be taken by such changes shall be given notice as provided by the law as it appears in Section 1989-a3 of the Supplement to the Code of Iowa as now amended; that the county auditor is hereby directed to cause notice to be given in this matter as by law provided; that the proposition and offer of the Katz-Craig Contracting Co. dated January 31, 1910, and filed this day with the auditor is hereby accepted; that notice of this acceptance together with a copy of this resolution be mailed to said company according to the terms of such offer; and that the report of the commissioners appointed to classify the lands benefited by the location and construction of such drainage district filed on December 1, 1909, and the apportionment therein made be and the same are hereby annulled and set aside."
Payments made to defendant previous to January 31, 1910, are as follows:
August 27, 1909
$ 499.68
September 23, 1909
631.01
January 19, 1910
618.48
Total
$ 1,749.17
Subsequent payments were made as follows:
March 7, 1910
$ 528.00
May 20, 1910
1,254.84
July 30, 1910
2,675.83
Total
making the total amount received by defendant for the work done in said drainage district, $ 6,207.84.
Plaintiff alleged in its petition that, by oversight, mistake, or on account of the fraud of the defendant, it was paid $ 1,782.84 over and above the amount due, and plaintiff now seeks to recover this overpayment. As instructed by the resolution of the board, the county auditor testified that, on February 12, 1910, he forwarded to defendant by mail a certified copy of the resolution accepting its offer, enclosing therewith a letter signed by him as follows:
The real controversy in this case arises out of the different interpretations placed by the respective parties upon defendant's letter of January 31st. The interpretation placed thereon by the plaintiff in its pleadings and in the trial below was that defendant offered to complete the excavation of the ditches required by the enlarged and altered plan of the engineer for $ 4,425, which sum was also to be in full for all work performed by defendant in said district prior to as well as after January 31st, the date of defendant's written offer. On the other hand, it is contended by appellant that its offer of January 31st is plain and unambiguous, and will bear no other construction than an offer to complete the improvement as changed, according to the plans and specifications of the original contract, for $ 4,425; but that payments already made were earned and paid for services under the original contract, wholly without reference to the contract as modified. Appellant treats the original contract as substantially abrogated and abandoned, and the offer of January 31st and the acceptance thereof by the board of supervisors as the real contract between the parties. It is clear, however, that the effect of the new arrangement was to modify the original contract only in the particulars stated in the letter of January 31st.
The offer of January 31st refers specifically to the plans and specifications for the improvement, and the contract then in force between the parties. No evidence of the dimensions of the excavations to be made by defendant, of the number of yards of earth to be removed, the character of the particular work, nor the manner in which same was to be done, was offered upon the trial.
It is apparent, however, from the record that the excavation required by the original contract was much more extensive than that covered by the contract as modified. Counsel for defendant objected to the offer of the auditor's letter of February 12th, and particularly to the last paragraph thereof, on the ground that same was incompetent, immaterial, and irrelevant; that same sought to contradict and vary the records of the board of supervisors; that same was written after the contract between the parties had been consummated by the acceptance of defendant's offer by the board; that the interpretation and understanding of the county auditor were in no sense binding upon the defendant; and that same was merely a voluntary, unauthorized statement on the part of the county auditor.
In its letter of January 31st, defendant reserved the right to withdraw its offer at any time before acceptance, and requested that a copy of the resolution accepting same be forwarded by mail to it at its office in Omaha, Nebraska. The resolution of the board directed the county auditor to notify defendant of the acceptance of its offer, and to forward to it a copy thereof. The county auditor stated in his letter to defendant that he was enclosing the copy of the resolution and notifying it of the acceptance of its offer, upon the order of the board of supervisors. The receipt of this letter by defendant was notice that the writer thereof was carrying out the directions of the board. It was apparent therefrom that the auditor was also complying with the request of defendant that notice be sent it of the acceptance of its offer. The resolution, it is true, made no reference to the matters contained in the last paragraph of the auditor's letter; but he was the clerk, and kept the records of the proceedings of the board of supervisors in drainage matters, and, as a matter of common knowledge, usually attends the meetings thereof. His official duties require him to draw all warrants on the drainage funds, give notice in drainage proceedings, and to perform other duties in relation thereto; all of which was, of course, known to the defendant.
It may be conceded that the county auditor could in no way vary or alter the terms of the contract between the...
To continue reading
Request your trial