Goben v. Des Moines Asphalt Paving Co.
| Decision Date | 09 January 1934 |
| Docket Number | 42005 |
| Citation | 252 N.W. 262,218 Iowa 829 |
| Parties | C. T. GOBEN, Appellee, v. DES MOINES ASPHALT PAVING COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 18, 1934.
Appeal from Union District Court.--EARL PETERS, Judge.
This is an action by the plaintiff to recover from the defendant fifty-five cents per "superficial square yard" for subgrading, preparatory to paving in the town of Creston. There was a trial to the jury, which resulted in a verdict for the plaintiff. On that verdict, judgment was entered by the court, and the defendant appeals.
Affirmed.
Gibson & Stewart and Healey & Reynolds, for appellant.
Higbee & McEniry and W. W. Bulman, for appellee.
MITCHELL, J., takes no part.
According to the record, the defendant-appellant, Des Moines Asphalt Paving Company, on August 6, 1923, entered into a written contract with the city of Creston to pave certain public streets and alleys therein. A Mr. Akin, at or about the same time, entered into a contract with the city of Creston to install the curbs and gutters. Later, but soon thereafter, the plaintiff-appellee, C. T. Goben, entered into three grading contracts relating to this street improvement. The appellee had one contract with the city of Creston under which he was to remove all of the excess dirt "on any of the streets to be paved by the" appellant "down to the level of the top of the paving slab". Under the second contract, the appellee agreed with the said Akin, or the Akin Construction Company, to do the grading on the streets for the curbing and guttering. When the appellant contracted with the city, it agreed, in addition to paving the streets, to reduce them to subgrade. This reduction was to be to the extent of the thickness of the paving so that the pavement, when placed, would be on grade. Therefore, the appellee's third contract was with the appellant to do the subgrade work in order that the pavement would be on grade, as before explained.
That the appellee was to do this work, there is no controversy. Both the appellee and the appellant agree to this. But a controversy does arise over the amount of the compensation and the conditions under which it was to be paid to the appellee for the work. The agreement was oral, and not written. According to the appellee, the appellant agreed to pay him fifty-five cents per superficial square yard for this part of the work, while it is contended by the appellant that he was to pay the appellee only forty cents per cubic yard therefor. Also it is said by the appellee that the appellant agreed to pay him for the yardage removed every two weeks. For the purpose of so doing, the appellant, according to the appellee, agreed to have the city engineer make rough estimates of such yardage thus removed every two weeks, in order that the periodical payments could be made.
After the appellee had worked under the contract for more than two weeks, he had removed, according to the record, 7,131.4 superficial square yards of dirt. Because, however, the appellant did not pay him at the end of the two weeks, the appellee ceased operations and left the job. At the time the contract was entered into, the appellee contends that he informed the appellant of the necessity of such payment in order to finance the operations. On the one hand, therefore, it is claimed by the appellee that, although he did not complete the contract, he is entitled to recover the contract price on the work performed, in view of the appellant's breach of the contract in failing to make payment on the rough estimates at the end of the two-week period; but, on the contrary, it is argued by the appellant that the appellee is not entitled to recover the contract price because he, without excuse, abandoned the work. That in a general way is a statement of the issues involved.
Payment of compensation for the work performed by the appellee was refused by the appellant. Following the refusal of the appellant to pay the contract price of fifty-five cents per superficial square yard, the appellee commenced this proceeding on February 25, 1926. As a result of the trial involved on this appeal, the jury returned a verdict for the appellee, and judgment was entered accordingly. From that judgment the appellant appeals.
This cause has been to this court on three former appeals. See Goben v. Des Moines Asphalt Paving Co., 204 Iowa 466, 215 N.W. 508; Goben v. Des Moines Asphalt Paving Co., 208 Iowa 1113, 224 N.W. 785; Goben v. Des Moines Asphalt Paving Co., 214 Iowa 834, 239 N.W. 62.
I. It is first argued by the appellant that it is entitled to a new trial because the district court did not sustain its motion for a directed verdict. The grounds in the appellant's motion for the directed verdict are that there is no evidence justifying the submission of the cause to the jury on the theory that the appellee was to be paid any sum of money for a two weeks' period before September 4, 1923, on which date the work was abandoned by the appellee; that there was no evidence offered or adduced as to the number, "if any, of so-called superficial yards of dirt moved by the plaintiff (appellee) during any two weeks period of time" between August 13, 1923, and September 3, 1923; that the appellee "elected to sue on his contract for the full amount due thereunder and plead justifiable abandonment and introduced proof upon quantum meruit only;" that the appellee "did not prove a justification for abandonment of the work due to any act or failure to act on the part of the" appellant; that "the evidence of the" appellee "shows that there was complete accord and satisfaction of the claimed debt owed him by the" appellant, "in that the greater weight and preponderance of the evidence adduced" indicates "unquestionably that the" appellee "sued the City of Creston for all the grading work done by him in the City and that the" appellee "settled said suit with the City of Creston and thereby settled his account with the" appellant; that the agreement claimed by the appellee and the evidence offered to sustain the same "is so unreasonable and preposterous in its terms that, as a matter of law, it could not have been the contract", and no contract could have been entered into on the basis of fifty-five cents per superficial square yard, as defined by the appellee; and that under the whole record it is apparent that the appellee could not recover on the basis claimed.
Manifestly a careful reading of the record in the case at bar, with the opinions in the other Goben cases, above cited, will reveal the error of the appellant's contentions. Of course, the district court in the present controversy was bound by the previous Goben cases. In fact, those opinions became the law of this case. Hendershott v. Western Union Telegraph Co., 114 Iowa 415, 87 N.W. 288; Retherford v. Knights & Ladies of Security, 183 Iowa 1099, 168 N.W. 89. We said in the Hendershott case, reading on page 418:
So far as the record now before us is concerned, there is sufficient evidence to justify the district court in submitting the case to the jury on the contract claimed by the appellee. Goben v. Des Moines Asphalt Paving Co. (214 Iowa 834, 239 N.W. 62), supra.
Not only the appellee, but also the witnesses Ditmar, Reed, and Howard, testified that the appellant was to pay the appellee fifty-five cents per superficial square yard for this work. The appellant, in its answer, does not entirely deny that contract, but rather alleges that its president, J. M. Burrows, "was under the impression" that such was not the contract. Throughout its argument, the appellant ridicules the claim of the appellee for pay on the basis of a "superficial square yard". It is the theory of the appellant that the term is unknown to contractors and engineers. According to the record, the term appears in the Oxford Dictionary. Apparently that term also appeared in the plans and specifications of the engineer for the city of Creston in relation to the paving and grading job in question. A superficial square yard is defined by the appellee as three feet each way on top and as deep as the depth of the pavement. At times there seems to be a discrepancy in the appellee's testimony concerning the depth of the pavement. That, however, is quite immaterial (except perhaps for impeachment purposes), because at all times the appellee, in defining a superficial square yard, was referring to a space three feet each way and as deep as the pavement. See Goben v. Des Moines Asphalt Paving Co. (204 Iowa 466, 215 N.W. 508), supra; Goben v. Des Moines Asphalt Paving Co. (214 Iowa 834, 239 N.W. 62), supra. However that may be, there is evidence in the record to sustain the verdict concerning this phase of the contract. Likewise there is evidence in the record to sustain that portion of the contract in which the appellant agreed to pay the appellee fifty-five cents per superficial square yard.
Moreover the reasonableness of such a charge is somewhat sustained by the record wherein it describes the work involved. A peculiar dirt or soil, existing on part of the streets in Creston, was difficult to move. It did not break up as ordinary dirt, but clung together and thereby necessitated cutting and breaking. Because of the removal of this...
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