Fairmont Cement Stone Mfg. Co. v. Davison

• Decision Date: 25 July 1913
• Citation: 142 N.W. 899,122 Minn. 504
• Parties: FAIRMONT CEMENT STONE MFG. CO. v. DAVISON et al.
• Court: Minnesota Supreme Court

122 Minn. 504

142 N.W. 899

FAIRMONT CEMENT STONE MFG. CO.

v.DAVISON et al.

Supreme Court of Minnesota.

July 25, 1913.

Appeal from District Court, Martin County; James H. Quinn, Judge.

Action by the Fairmont Cement Stone Manufacturing Company against Cyrus E. Davison and others. From an order overruling demurrers to the complaint, defendants appeal. Affirmed.

Syllabus by the Court

‘A complaint, to be bad on demurrer, must be wholly insufficient; if to any extent, on any reasonable theory, it presents facts sufficient to justify a recovery, it will be sustained, however inartificially the facts may be stated.’

The statute required the contract for construction of a ditch to provide for supervision thereof and to define the relations between the county and the contractor. It also required the engineer to stake out the work, to prepare plans and specifications therefor, to inspect the work as provided in the contract, and to give bond for the proper performance of his duties. The complaint alleged that it was the duty of the engineer to give the contractor all necessary direction for the construction of each and every part of the work, and that solely through his negligence a large quantity of underground tile, laid as directed by him, was placed at such an incorrect grade that it was necessary to take it up and relay it. From the statute and the complaint it will be inferred, as against a demurrer, that the duty to supervise the laying of the tile and to see that it was placed at grade was imposed upon the engineer by the contract, and hence that his failure to perform such duty was a breach of his bond.

A statutory bond, containing the statutory condition and also other conditions, will be so construed as to give effect to the statutory condition, unless the language of the bond precludes such construction. Dean & Palmer, of Fairmont, and J. W. Seager, of St. James, for appellants.

Albert R. Allen, of Fairmont, for respondent.

TAYLOR, C.

Appeal by defendants from an order overruling a demurrer to the complaint.

[1] ‘The general rule is that a complaint, to be bad on demurrer, must be wholly insufficient; if to any extent, on any reasonable theory, it presents facts sufficient to justify a recovery, however inartificially the facts may be stated, the complaint will on demurrer be sustained.’ Casey v. Am. Bridge Co., 95 Minn. 11, 103 N. W. 623;Wessel v. Wessel Mfg. Co., 106 Minn. 66, 118 N. W. 157;Vukelis v. Virginia Lumber Co., 107 Minn. 68, 119 N. W. 509;Rasmussen v. Town of Hutchinson, 111 Minn. 457, 127 N. W. 182.

[2] In proceedings in the district court of the county of Martin under chapter 448, Laws of 1907, a judicial ditch was established and designated as ‘Judicial Ditch No. 6.’ Plaintiff is the contractor who constructed the ditch. Defendant Davison is the engineer appointed in the ditch proceeding, and the other defendants are the sureties upon his bond as such engineer. A copy of the bond is made a part of the complaint.

Under the statute it was the duty of the engineer to make a survey and plat of the ditch and plans and specifications therefor, and place stakes 100 feet apart along the course thereof (sections 3 and 5); also to give, in tabular form, the depth of cut and the width at top and bottom, ‘at the source and outlet and at each 100-foot stake or monument of said ditch’ (section 3); also to ‘report a form of contract as complete in its provisions as practicable and which contain detailed and complete specifications by direct statement, or by reference to other parts of the report, and shall provide for all necessary supervision of the laying of tile, excavation and other construction work of the contractor or contractors, and which shall define the relation which shall exist between the county and the contractor or contractors, and which shall give the engineer the right with the consent upon application and order of the court therein, to modify his plans and specifications as the work proceeds, and as circumstances may require’ (section 3); also ‘to inspect the laying of tile, excavation and all other work of construction from time to time as provided for in the specifications and provisions in his report, and as provided for in the contract for construction’ (section 17).

While in some of its statements the complaint is not as clear and certain as it might be, it alleges that plaintiff contracted to construct the ditch ‘according to the plans and specifications' of the engineer, and that it was the duty of the engineer to establish the grade line and stake out the work so that plaintiff could lay the tile to grade, and ‘to give to the plaintiff all necessary and proper direction for the construction of each and every part of the work provided for in the contract.’

The complaint further alleges in substance, and with sufficient certainty as against a demurrer, that plaintiff laid 6,900 feet of underground tile under the supervision of and as directed by the engineer; that solely through his negligence the tile was not laid at the proper grade, and for that reason plaintiff was compelled to take it up and relay it; that plaintiff took up the tile and relaid it under the supervision of, and exactly as directed by, the engineer; that the engineer failed to establish ‘the proper grade the second time that said tile was laid,’ and solely by reason of his negligence 5,000 feet of the tile relaid was not placed at the correct grade, and solely for that reason plaintiff was again compelled to take it up and again relay it.

Plaintiff seeks to recover from the engineer and his sureties, as damages, the expense incurred in taking up and relaying the tile.

Neither the contract nor the plans and specifications for the ditch are before us, and the duties imposed upon the engineer thereby must be determined from the provisions of the statute and the somewhat meager statements relating thereto contained in the complaint. The statute requires the contract to ‘provide for all necessary supervision of the laying of tile,’ and to ‘define the relations which shall exist between the county and the contractor,’ and requires the engineer ...