Gjellefald v. Hunt
| Decision Date | 21 September 1926 |
| Docket Number | 37252 |
| Parties | O. N. GJELLEFALD, Appellant, v. A. L. HUNT et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Kossuth District Court.--F. C. DAVIDSON, Judge.
Action in equity, to recover a balance due on a contract for construction of a drainage ditch in Kossuth County. From a decree in favor of the defendants, the plaintiff appeals.
Affirmed.
Senneff Bliss, Witwer & Senneff, for appellant.
T. P Harrington, for appellees.
ALBERT J. DE GRAFF, C. J., and EVANS and STEVENS, JJ., concur.
I.
Appellant alleges that he entered into a written contract with the appellees to furnish the material and labor and construct a drainage ditch in Drainage District No. 157 in Kossuth County; that he has completed the sad ditch; that the same has been accepted by the board of supervisors; and that there is a balance of $ 6,271.50 due on the contract. He asks for an order commanding the county auditor to issue a warrant on the county treasurer of said county for said balance.
The board of supervisors filed a separate answer, in which they admit Paragraphs 1, 2, 3, 4, 5, and 6 of the petition. This admission is not very enlightening, because the petition is not divided into numbered paragraphs, and it is difficult to determine what admissions are made by this statement in the answer. This matter, however, in view of the turn the case took, may not be material. Appellees deny that appellant encountered quicksand in carrying out his contract; admit that a certain purported contract, a substantially correct copy of which is attached to the petition, was signed, according to the purport of said copy; admit that the engineer appointed by the board inspected the work, and made monthly estimates; but deny that said estimates were approved by them. They admit that the estimates were paid by warrants, but say that the warrants issued were far in excess of the contract, and that said excess was paid without authority, and in violation of law, and that, therefore, the warrants are wholly void. They allege that the "quicksand" clause contained in the contract was never rightfully or with authority or legally inserted in said contract. They deny the existence of any power or authority or valid obligation whereby the funds of the district could lawfully be used in paying "actual cost plus 15%" for work done through quicksand.
In their cross-petition against appellant, appellees ask to recover the alleged excess, amounting to $ 8,288.65, already paid appellant, and allege, as basis therefor, that the contract in controversy was drawn by a clerk in the office of the auditor of Kossuth County, without authority of law, and without the knowledge or authority of the appellee board; that there was inserted in said contract a clause stating that; if "quicksand and rock are encountered, contractor to receive actual cost plus 15%." They say that this clause was wholly illegal; that it was inserted without authority of law, and without the authority or knowledge of the appellee board; that it is in violation of the statutes of the state, and is fraudulent and void as to these appellees. They allege that the total amount appellant was legally entitled to receive for material furnished and work done was $ 15,232.63, and that he was paid $ 23,521.28; and they seek to recover the difference between these two sums. They allege that the bid submitted by appellant, which was accepted by the board, contained no clause or provision entitling appellant to receive "cost plus 15%" for any work, whether done in quicksand, rock, or otherwise; and that such clause was never agreed upon, and was never mutually intended between the parties, but was inserted by mistake in drawing the contract. They seek to have the contract reformed by striking out the words "quicksand and rock are encountered, contractor to receive actual cost plus 15%."
By way of two amendments to their answer, they replead matters already stated herein, and set out the public advertisements for bids. They state that appellant filed a bid thereunder, which was accepted by the board, and that it was therefore ordered by the board that the contract be entered into, as authorized by law; that the contract was drawn by the deputy auditor or drainage clerk of Kossuth County, without the knowledge or authority of the board of supervisors; and that said clerk, with appellant, caused said clause to be inserted in said contract; that the contract, when so executed, was signed by the county auditor and the chairman of the board of supervisors. They allege that the engineer in charge, in issuing the estimates based upon the provision of the contract in dispute, issued estimates far in excess of what appellant was entitled to receive, and that the county auditor of said county, without authority or knowledge of the board of supervisors, issued drainage warrants for such illegal and excessive sum.
Appellant, by way of amendment to his petition, says that the contract sued on herein provided that, "should there be any difficulty between the parties hereto as to the construction of any of the provisions of this agreement, including the plans and specifications hereinbefore made, the part thereof relating to the work to be done, such differences should be referred to the engineer employed by the party of the first part in charge of the work, and his decision shall be final for both parties;" that he relied on the contract, and proceeded with the work; that, as the work progressed, the engineer examined the same and determined that part of the work was of the character that would come within the provision of the contract which called for payment on the basis of 15 per cent plus; that the monthly estimates of the engineer, from time to time, were based thereon, and appellant was paid 80 per cent, as provided by law, on said estimate; that appellant relied on the construction so placed by the engineer, and spent a large amount of time and labor, as set forth in the petition; and that appellees are now estopped from denying the correctness of the construction and the determination fixed by the engineer.
Appellant, by way of reply to the cross-petition of appellees, says that his bid, as submitted, contained a clause which read, "over-depth scheduled and quicksand and rock specifications same as my contract in 5-87;" that the specifications on Contract 5-87 were made a part of that contract, and Contract 5-87 contained the following provision: "Where quicksand or solid rock are encountered * * * the contractor shall receive actual cost plus 15% for all labor and material used." He says also that the contract entered into in this matter was based upon the bid thus submitted by appellant, and with the full and complete understanding of the parties.
Part of the original answer that we have set out was Division 2 thereof. It is stipulated by the parties and ordered by the court that a separate trial be had on the issues that are raised in Division 2 of the original answer, and in the amendment to the answer and cross-petition filed September 3, 1923. The first question discussed relates to the validity of the provision in said contract controlling payment where quicksand or rock is encountered.
The attack on the validity of this clause of the contract comes from two angles. The first involves wholly a fact question; the second, a law question. Under the first of these propositions, it is the claim of appellees that, at the time the bid was submitted, it contained no provision whatever covering this matter, and it is intimated that the same was placed therein after the contract was signed. It is claimed that appellees never consented, agreed, or understood that said clause was to be contained in said contract. Hence they say that said clause was never a part of the contract actually made.
The board of supervisors of Kossuth County consisted of three members, at the time of the controversy herein. Anderson, who signed the contract, was chairman of the board, and the other two members were Tjaden and Hopkins. Anderson was dead at the time of the trial, in September, 1924. The contract was let in August, 1919. Hopkins testified that he was a member of the board when the contract was let. He says that the bids were read off by the secretary. As to the quicksand and rock clause, he says:
He does not remember whether the contract was presented to the board and considered by it or not. He says that he never examined the contract while he was a member of the board, and that he did not know that the contract contained a clause about sand and rock. On cross-examination, he says:
He was then asked this question:
"
Tjaden testified that he was a member of the board of supervisors in 1919. His testimony is similar to that of Hopkins.
The bid of appe...
To continue reading
Request your trial