Goodwin v. Village of Firth

• Decision Date: 20 November 1957
• Docket Number: No. 8562,8562
• Citation: 79 Idaho 459,319 P.2d 970
• Parties: B. R. GOODWIN and Verl Goodwin, co-partners, doing business under the firm name and style of Goodwin Construction Co., Plaintiffs, Respondents, and Cross-Appellants, v. VILLAGE OF FIRTH, Idaho, a municipal subdivision of the State of Idaho, Defendant, Appellant, and Cross-Respondent.
• Court: Idaho Supreme Court

Page 970

319 P.2d 970

79 Idaho 459

B. R. GOODWIN and Verl Goodwin, co-partners, doing business under the firm name and style of Goodwin Construction Co., Plaintiffs, Respondents, and Cross-Appellants, v. VILLAGE OF FIRTH, Idaho, a municipal subdivision of the State of Idaho, Defendant, Appellant, and Cross-Respondent.

No. 8562.

Supreme Court of Idaho.

Nov. 20, 1957.

Rehearing Denied Jan. 16, 1958.

Holden, Holden & Kidwell, Idaho Falls, Earl W. Cory, Blackfoot, for appellant.

Anderson & Beebe, Blackfoot, for respondent.

McQUADE, Justice.

This is an action between B. R. Goodwin and Verl Goodwin, a partnership doing business as Goodwin Construction Company, referred to hereinafter as the contractor, and the Village of Firth, Idaho, referred to hereinafter as the Village.

The contractor alleges breach of a contract by which it was to install a sewer system in the Village for the sum of $37,002.55. The Village cross-complains for the cost of re-laying the sewer line.

The contract provided the contractor should visit the site of the work and fully inform himself as to existing conditions and limitations; that work should begin within three days after notification to be given by the Village, and should be completed 90 days thereafter; that the contractor should be fully responsible for any defective work or materials, notwithstanding acceptance of the work by the Village or approval of materials.

Other sections of the contract provided for compliance with specifications as to materials, and for strict conformity with plans except for authorized changes.

The contract provided also:

'The ground water table is known to rise to within a few feet of the surface during the irrigation season. In order to eliminate trench water as much as possible the Contractor must complete this job in as short a time as possible.'

It further provided in article 6, section 7:

'The maximum amount of ground water infiltration that will be allowed is 1200 gallons per day per mile of pipe. If more ground water infiltrates the sewer pipe than stated above as measured by the Engineer the Contractor shall immediately, upon receipt of notice from the Engineer that the infiltration is excessive, make the necessary repairs to reduce the infiltration to the allowable limits.'

It was stipulated by the parties at the trial that ground water infiltrated into the system to a maximum of 288,000 gallons of water per mile per day.

The Village paid the contractor $32,972.89 under the contract. The contractor brought this action to recover the $4,029.66 balance claimed to be due, plus $790.24 for extra work. The Village cross-complained for $21,952.35, described as the contract cost of re-laying the sewer line to prevent infiltration of water, and for $25 per day liquidated damages for failure to complete the sewer.

During the trial, the contractor, through witnesses, contended the presence of excessive ground water was due to the inadequacy of a cold mix joint compound used, which had been listed as approved in the contract specifications. The contractor maintained that the compound is of a type which is intended to remain relatively pliable, and proved unsuitable for use where there is excessive pressure from ground water.

The Village, on the other hand, contended the compound was satisfactory, and the contractor had chosen it in place of a hot mix compound, also specified. The Village further maintained the infiltration was due to defective workmanship in the laying of the pipe and back-filling thereon. There is no contention of fraud on the part of the Village relative to the quality of the joint compound.

The parties waived a special or a general verdict by the jury, and requested that interrogatories be submitted from which the Court would make findings of fact and conclusions of law.

The jury found the contractor had not complied with the specifications as to the manner of back-filling; that lack of compliance had contributed to excessive infiltration; that the infiltration was not caused nor contributed to by imperfect design or by insufficient specifications for the sewer; that the cold mix compound was defective, and contributed to the ground water infiltration; that the specifications for procedure and workmanship, if complied with, were sufficient to prevent excessive infiltration. In response to an interrogatory submitted by the Court on its own motion, the jury found 25 per cent of the infiltration was caused by defective workmanship, and 75 per cent by failure of the joint compound.

The Court, on the contractor's motion, set aside the finding of the jury as to percentages and held the Village was entitled to a reduction of $1,500 in the contract price, plus $100 for defective work on the 'wet well' into which the sewer lines discharged. The Court then entered judgment for the contract price less these offsets. Both parties have appealed.

There are various assignments of error on behalf of each of the parties, and the Court will consider only those which are deemed material to the disposition of the appeal.

Fundamentally, the assignments of error are pointed toward the instructions of the Court and the special interrogatories submitted to the jury. An instruction on substantial performance was assigned as error, based on the proposition that the contract provision limited the ground water infiltration to 1200 gallons per mile per day.

Error is assigned to the jury's determining what percentage of the infiltration was caused by the acts of each party. Error is assigned also to the finding of the jury that the contractor contributed to the excessive infiltration of water by lack of compliance with the terms of the contract in the back-filling of trenches, tamping, and dropping of rocks on the pipe.

Article 6, section 7, of the contract, above quoted, is not a guarantee. This section is more aptly explained in the case of MacKnight Flintic Stone Co. v. City of New York, 160 N.Y. 72, 54 N.E. 661, 665. The work there required that a cellar be made water-tight in accordance with certain plans and specifications, and that such construction be guaranteed absolutely water-tight and damp-proof for five years.

The Court in that instance said:

'* * * It was not a guaranty of the perfection of the plan, but of the materials and workmanship, and its effect was to make the plaintiff responsible for dampness or water breakage caused by such defects only. It required supplementary performance, if necessary, upon notice from the defendant, after acceptance and payment of the contract price.

'We think the evidence presented a question of fact for the jury as to the sufficiency of the plan to produce the result desired, and as to performance of the contract when properly construed. If the work was faithfully performed according to the plan and specifications, and the failure to secure a water-tight boiler room was wholly owing to the defective design of the defendant, the plaintiff would be entitled to recover, notwithstanding the refusal of the superintendent to give the required certificate; for under those circumstances it would be his duty to give it, and a refusal to do so would be unreasonable.' (Citing cases.)

The Court said also:

'* * * If there was an implied warranty of sufficiency, it was made by the party who prepared the plan and specifications, because they were his work; and, in calling for proposals to produce a specified result by following them, it...