Freese v. Town of Alburnett

Decision Date14 January 1964
Docket NumberNo. 51193,51193
Citation125 N.W.2d 790,255 Iowa 1264
PartiesMilan W. FREESE, d/b/a Milan W. Freese, Inc., Appellee, v. TOWN OF ALBURNETT, Iowa, Appellant.
CourtIowa Supreme Court

Francis J., Pruss, Clear Rapids, for defendant.

David G. Bleakley, and Harold D. Vietor, Cedar Rapids, for plaintiff.

LARSON, Justice.

Plaintiff contractor brought this action to recover the sum of $500.00 against the defendant Town of Alburnett, Iowa, under a well drilling contract. His claim is for extra work performed under authority of an 'extra work' order issued to him by the Town, through its engineer, pursuant to terms of the contract.

The issues themselves are simple. They are: (1) Was the work for which plaintiff seeks recovery actually extra work or was it work required under the basic contract price? (2) Did the plaintiff establish that he was entitled to the sum of $500.00 for extra work? The trial court found that the contract was ambiguous, that the work in issue was extra work, that the claimed amount was established under the contract, and overruled defendant's motion to dismiss and rendered judgment in favor of plaintiff for $500.00 plus interest.

Pursuant to a written contract, Exhibit 1, dated September 30, 1960, plaintiff drilled a deep well for defendant. Upon the completion of the actual drilling he was directed by the defendant's engineer to test pump the well under provisions of section 5 of the contract entitled 'Testing'. During the course of this test the well caved, allowing clay to come into the well preventing further testing. Under an extra work order, the test pump was removed, the well remand and cleaned, a 10 inch I. D. casing was installed, and the well was tested a second time, to the satisfaction of the engineer. Although the claim for extra compensation for the second testing operation was approved by the engineer, it was refused by defendant and this action followed. Plaintiff contends that under the terms of the original contract the basic price included but one testing, that the extra work order for the second testing was properly issued by the engineer and the compensation properly agreed upon under the general specifications and schedule of price of the contract. Other relative facts will be referred to as needed.

I. In its first brief point appellant asserts that work required to be performed by a written contract must be paid for at the contract, and additional compensation may not be recovered for work within the provisions of the contract. McCauley v. Des Moines, 83 Iowa 212, 48 N.W. 1028; Marsh & Co. v. Light & Power, Co. of St. Ansgar, 196 Iowa 926, 195 N.W. 754; 17 A C.J.S. Contracts § 364, Extra Work, page 368.

Appellee does not deny this proposition, but asserts the provisions of the contract relating to test pumping being ambiguous must be interpreted by the court. In Division I of his brief he asserts correctly that if a contract is not free from indefiniteness and ambiguity, it must be interpreted by the court, and in such cases the court must determine the intention of the parties at the time the contract was executed (Harvey Construction Co. v. Parmele, 253 Iowa 731, 113 N.W.2d 760), that ambiguity appears when a genuine doubt appears as to the meaning of a contract, and the instrument must be construed as an entirety. Pedersen v. Bring, Iowa, 117 N.W.2d 509. With these rules in mind, we examine the relevant provisions of the contract, Exhibit 1. Under the Schedule of Prices, P-2 2, appears the following: '7. * * * Furnish and install all equipment for test pumping. Lump sum $500.00.' Appellant contends this language is free from indefiniteness and doubt, and that it requires the appellee to test pump this well as many times as was necessary to satisfy the Town's engineer, for the sum of $500.00, in order to complete his basic contract. Appellee disagrees, contending this clause requires the expensive installation of test pumping equipment only once. Considering the evidence that this is a time-consuming and costly operation and that the contractor was required to follow implicitly the directions of the engineer, the trial court found considerable doubt as to the meaning of this contract provision. We must agree. It considered the second testing came within the contract's provision for extra work, which provided: 'Without invalidating the contract, the Town may, through the Engineer, order extra work deemed necessary. Such extra work shall be executed under the conditions of the original contract. Such extra work shall be done only on written order by the Engineer. Said order shall be explicit and shall be dated and signed by the Engineer. * * * The Town's copy of said work order shall be receipted for by the contractor's representative, * * *.'

It appears from the record that this contract was prepared by Mr. Rystrom, the Town's engineer, that the test pump was obtained from a concern in Rockford, Illinois, which furnished two men to assist in its installation and removal, at a total cost to plaintiff of $650.00, that it took some 98 man hours of labor for each installation and, in placing the lump sum figure of $500.00 in the original contract, the engineer considered that figure was for one test only.

It further appears the engineer knew the contractor had drilled through a clay deposit, and considered the danger of a cave-in. However, in an effort to save the expenses to the Town of some $480.00 in casing off that area, he took a calculated risk and ordered the test pumping operation prior to issuing an order to install casing as is provided for in the general contract. This provision of the contract stated: 'Though not anticipated the following unit prices shall apply if ordered by the Engineer: Drill for and install 10"' I. D. casing: $12.00 per foot.' The contract also provided: 'No deviation from the plans and specifications will be permitted without the written consent of the Town Council or the Engineer.'

In the light of these circumstances we are satisfied there was at least a fair doubt as to what the parties actually had in mind when they used the language expressed in Item 7 relating to test pumping.

II. This being true, we apply the rule that from the situation of the parties, the objects they were trying to accomplish, and any other facts in evidence, the actual intention of the parties must be determined. Harvey Construction Co. v. Parmele, supra, 253 Iowa 731, 739, 113 N.W.2d 760, 765. Other general rules applicable in this situation too well known to require citations are, that an agreement will not be construed so as to give one party an unfair, oppressive, or inequitable advantage over the other, that unless the terms of the contract clearly require it, an interpretation will not be given which places one party at the mercy of the other, that courts will endeavor to give the contract that interpretation most equitable to the parties, and that the contract will be construed most strictly against the one who...

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17 cases
  • Walker Mfg., Inc. v. Hoffmann, Inc., C00-103-MWB.
    • United States
    • U.S. District Court — Northern District of Iowa
    • 13 Septiembre 2002
    ...as a whole." Cooper Distributing Co. v. Amana Refrig., Inc., 63 F.3d 262, 286 (3d Cir.1995) (citing Freese v. Town of Alburnett, 255 Iowa 1264, 1267, 125 N.W.2d 790, 792 (1964) ("[A]mbiguity appears when a genuine doubt appears as to the meaning of a contract, and the instrument must be con......
  • Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 28 Septiembre 1995
    ...language must be determined by looking at the contract as a whole. As the Iowa Supreme Court said in Freese v. Town of Alburnett, 255 Iowa 1264, 125 N.W.2d 790, 792 (1964), "[A]mbiguity appears when a genuine doubt appears as to the meaning of a contract, and the instrument must be construe......
  • Webb v. Lake Mills Community School District
    • United States
    • U.S. District Court — Northern District of Iowa
    • 26 Mayo 1972
    ...Co., 176 N.W.2d 761 (Iowa, 1970); Walnut Street Baptist Church v. Oliphant, 257 Iowa 879, 135 N.W.2d 97 (1965); Freese v. Town of Alburnett, 255 Iowa 1264, 125 N.W.2d 790 (1964); Pazawich v. Johnson, 241 Iowa 10, 39 N.W.2d 590 (1949). Here Superintendent Mitchell stated the terms of the agr......
  • Holden v. Construction Machinery Co.
    • United States
    • Iowa Supreme Court
    • 15 Noviembre 1972
    ...that courts will endeavor to give the contract that interpretation most equitable to the parties, * * *.' Freese v. Town of Alburnett, 255 Iowa 1264, 1268, 1269, 125 N.W.2d 790 (1964), and 'Bearing this rule in mind, after careful analysis of the record, it is our considered opinion that th......
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