Dow v. United States
| Decision Date | 16 March 1946 |
| Docket Number | No. 3170.,3170. |
| Parties | DOW et al. v. UNITED STATES, for Use and Benefit of HOLLEY. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Arthur E. Moreton, of Salt Lake City, Utah (John E. McCall, of Los Angeles, Cal., and E. R. Christensen, of Salt Lake City, Utah, on the brief), for appellants.
Gordon R. Strong, of Salt Lake City, Utah (Benjamin L. Rich, of Salt Lake City, Utah, on the brief), for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
The United States awarded to R. H. Dow, engaged in business under the trade name of L. F. Dow Company, a prime contract for the construction of six warehouses at an army air base near Ogden, Utah; and a bond was executed and delivered, conditioned as required by the so-called Miller Act, 49 Stat. 793, 40 U.S.C.A. § 270a et seq. Dow entered into a subcontract with Ben J. Holley for the performance of that part of the work referred to as footing excavation. The contract provided that Holley should be compensated at the rate of fifty cents per cubic yard, bank measurements, for earth excavated and moved. Holley completed the work and certain payments were made, but a controversy arose as to whether there was a balance due. This action was instituted in the name of the United States for the use and benefit of Holley against Dow and the sureties on the bond. The complaint, as finally amended, was in three causes of action. The first cause was to recover the balance alleged to be due for the work done under the subcontract; the second was to recover for gravel furnished; and the third was to recover for rental of a dragline. By answer, it was pleaded that the subcontract obligated Holley to perform the excavation work according to the plans and specifications; that the subcontract provided that overcuts from lines would not be measured for payment; that Holley did overcut; and that the overcut was not to be included in the measurements for payment. By cross complaint, it was pleaded that due to Holley's negligent and careless overcutting, Dow was obliged to backfill and tamp certain material and to pour additional cement, all at extra outlays of labor and material; and recovery was sought accordingly. No issue was presented at the trial in respect of the second and third causes of action. In respect of the first cause and the cross complaint, the court submitted to the jury the issue of fact whether Holley in the performance of the work under the subcontract did overcut, and if so whether as the reasonable consequence Dow was subjected to additional outlays of labor and material. Plaintiff prevailed and defendants appealed.
The first contention is that under the terms of the subcontract and the plans and specifications, Holley was not entitled to recover and that there was no issue properly for submission to the jury. The argument in support of this contention is that the subcontract obligated Holley to perform his work in accordance with the plans and specifications; that the plans and specifications contemplated the cutting of the banks or sides of the trenches vertically; and that Holley did not cut them in that manner but cut them on a one-to-one slope which resulted in excavating and moving more earth than was contemplated. The subcontract did provide that the work done under it should conform strictly to the plans and specifications. But it also provided that the work should be done "as directed, and to conform strictly to lines and grades furnished by the contractor." And it further provided that the subcontractor should "perform his work as directed by the Contractor and/or the Owners representative, and in accordance with the plans, specifications * * *." The specifications provided that "The depth of foundations, footings, and trenches shall be as indicated on the drawings or specified * * *." And they further provided that "excavation for structures shall be of sufficient size to permit installing and removing forms, to allow the various trades to make their installations, and to permit inspection." There was testimony that when Holley was ready to begin his work, the general superintendent in charge for Dow introduced him to the general foreman and told him that he would take all orders from the foreman; that the foreman caused four stakes in a line to be placed on the ground at intervals of approximately 100 feet; that the inside or toe stakes indicated the bottom width of the excavation, and the outside or slope stakes indicated the slope on which the excavation was to be dug; that when the work first started, the slope stakes were set on a half-to-one slope, meaning that for every foot of excavation there should be a cut of six inches into the bank; that after a few hundred feet had been cut in that manner, the ground caved in so badly that the foreman called Holley back and had him clean it out and widen the slope over the whole area to a one-to-one slope; and that thereafter throughout the entire progress of the work, the foreman caused the stakes to be set on a one-to-one minimum slope, which meant that for every foot of excavation there should be cut one foot into the bank. There was testimony that the foreman furnished Holley with two templets or gauges and directed him to use them frequently in the progress of the work. There was further testimony that the work was done in strict accord with the stakes thus set and the templets or gauges thus furnished. And there was countervailing testimony. The evidence presented a sharp issue of fact as to whether the foreman for Dow set slope stakes, furnished templets, or gauges, and directed that the work be done in accordance with them. But in a case of this kind, contradictions and conflicts of evidence are for the jury, and where the evidence and the inferences fairly to be drawn from it are such that reasonable minds may honestly draw different conclusions from them, the issue should be submitted to the jury. The credibility of the...
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