Freeto v. State Highway Commission
| Decision Date | 09 March 1946 |
| Docket Number | 36315. |
| Citation | 161 Kan. 7,166 P.2d 728 |
| Parties | FREETO v. STATE HIGHWAY COMMISSION and twelve other cases. |
| Court | Kansas Supreme Court |
Appeal from District Court, Shawnee County; George A. Kline, Paul H Heinz, and Dean McElhenny, Judges.
Appeal from District Court, Shawnee County; George A. Kline, Paul H Heinz, and Dean McElhenny, Judges.
Actions by F. H. Freeto, E. W. Geiger, sole surviving partner of Geiger & Rutherford, and another, C. A. Tucker and another S. H. Reno, Harry J. Taylor, George Bennett, List & Clark Construction Company, D. G. Hansen, Sarah H. Cook and another partners doing business under the firm name and style of Cook & Tucker, and another, Lloyd K. Jones, Grant A. Stannard and another, doing business under the firm name and style of Stannard Construction Company, Charles Hulme, and J. H Rhoades and others, partners doing business under the firm name and style of Rhoades Construction Company, against the State Highway Commission of the State of Kansas to have highway contracts cancelled on ground of impossibility of performance. Form orders sustaining demurrers to the evidence the plaintiffs appeal.
Syllabus by the Court.
1. The rule that upon defendant's demurrer to plaintiff's evidence the court is not authorized to weigh conflicting evidence, but should recognize as true all the evidence offered by plaintiff which reasonably tends to support his cause of action, is applicable to this court as well as to the trial court.
2. The interpretation of a written contract is for the court.
3. A contract for the construction of a highway project is examined and held to be a binding contract for the completion of the project, and that it contains no clause excusing complete performance.
4. A contract for the construction of a highway project is examined and it is held plaintiff's allegation that it provided a definite time for the completion of the project, which time had expired when the action was brought, is not supported by the terms of the contract.
5. One who voluntarily executed with the State Highway Commission a binding contract which contained no provision excusing performance to construct a highway project, at a time when he knew a continental war was raging in Europe and another in Asia, and when there were many indications that our nation would become a belligerent party in such war, or knowing it had become such a party, and realizing that the performance of the contract might be delayed or become more expensive or burdensome by reason thereof, is not entitled to have his contract cancelled because of conditions resulting from the participation of our nation in such wars.
6. It is not the function of courts to make contracts. Their function is to enforce them as made.
7. If the doctrine of frustration of a contract because of conditions arising after its execution, which were not within the contemplation of the parties thereto, and which makes the performance thereof more expensive or difficult, is to be applied in this state, the facts disclosed by plaintiff's evidence preclude its application here.
E. H. Hatcher, of Topeka (Barton E. Griffith, of Topeka, and Lee Bond, of Leavenworth, on the brief), for appellants.
Kirke W. Dale, of Arkansas City (Otho W. Lomax, of Topeka, Eldon Wallingford, of New York City, and Albert Faulconer and Donald Hickman, both of Arkansas City, on the brief), for appellee.
F. H. Freeto, a highway construction contractor, and twelve other persons, firms, or corporations engaged in the same business, each having previously entered into one or more contracts with the state highway commission (hereinafter called the commission) for the construction of one or more highway projects, brought separate actions in equity against the commission in the district court of Shawnee county to have the contracts cancelled on the ground of impossibility of performance. In the thirteen actions the plaintiffs sought cancellation of twenty-seven contracts involving highway projects, the contract cost for which aggregated about $1,600,000. Some of the actions were filed January 19, 1944, and others on various dates to March 10, 1944. As filed, some of the cases were assigned to each of the three divisions of the court. After issues were joined by pleadings filed the actions were consolidated for the purpose of trial and were tried before the three judges of the three divisions of the court sitting en banc, and counsel stipulated 'that all evidence offered may be considered where competent, in each of the cases.' The trial was had and plaintiffs' evidence introduced October 12 to 19, 1944. At the close of the evidence on behalf of plaintiffs defendant demurred 'to the evidence in every case, for the reason that the evidence adduced fails to establish or prove a cause of action in favor of the plaintiffs or any of them and against this defendant under the issues joined in each and every case herein.' After considering the evidence and the argument of counsel on the demurrer the court sustained the demurrer and each judge made the proper order in the case pending in his division. Plaintiffs promptly appealed to this court from the order sustaining defendant's demurrer to the evidence. In this court the entire proceedings were filed as one case and abstracted and briefed together.
Appellants point to our well established rule that in considering defendant's demurrer to plaintiffs' evidence the court cannot weigh the evidence, but must consider it in the light most favorable to plaintiffs. See Zumbrun v. City of Osawatomie, 130 Kan. 719, 721, 288 P. 584; In re Estate of Bond, 158 Kan. 776, 150 P.2d 343, and cases cited therein. This requires us to summarize the pleadings and the evidence.
The petition in the case of Freeto v. The Commission, after identifying the parties and their functions, alleged that on May 14, 1941, plaintiff entered into two contracts (tied together) with defendant for the construction of two bridges in Neosho county, known as Project No. 39-67 FA 567, Section A(1), which contract incorporated by reference and made a part thereof the standard specifications for state road and bridge construction (printed in book form and too bulky to attach), plaintiff's proposals, schedule of prices, and the bonds. These were attached as exhibits. That the work order was issued January 19, 1942; that plaintiff started work on the project, completed the piers and abutments, and had received the reinforcing steel when he was forced to cease work on the project and has been unable to continue due to the participation of the United States in the present World War. The causes arising from war conditions which made the continuance of the contracts impossible were alleged to be: (1) The refusal of the federal government to permit steel companies to ship structural steel needed for the completion of the project because its use was necessary for war purposes, and that it is impossible to foresee when structural steel will be available. (2) The War Production Board placed a stop order on the project December 24, 1942, requiring cessation of further work. (3) Plaintiff was informed by army officials, through his agent, J. W. Ballard, secretary of the Kansas Contractors Association, that unless equipment was made available for war projects such equipment would be taken under authority of U.S.C.A., Title 50 Appendix, § 721, and made available for government use. (4) The priorities for highway construction were not sufficient to enable plaintiff to obtain repairs for equipment even though it were available. (5) Labor has been withdrawn from highway construction to work on war projects and is not and cannot be made available. That because of such conditions plaintiff is unable to continue the work on the project and that it cannot be foreseen when, if ever, he will be able to do so; that if at some future date he might be able to complete the work, conditions have so changed that the work could not be completed under the terms and conditions the contracting parties had in mind when the contracts were made; that the contracts provided for a limited time for completion, which time has long since expired, but defendant has failed and refused to cancel the contracts and plaintiff is being hampered and damaged in the conduct of his business by reason thereof. The prayer was for a decree that the contracts are no longer in force and an order that the defendant cancel the same, that an accounting be had for the work done, and for such other relief as the court finds just and equitable.
Attached to the petition as Exhibit 'B' is a copy of plaintiff's proposal for a contract for the construction of one of the bridges, which reads:
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