Greenlee County v. Webster

• Decision Date: 02 June 1926
• Docket Number: Civil 2426
• Citation: 30 Ariz. 245,246 P. 543
• Parties: COUNTY OF GREENLEE, a Corporation, and W. J. COLLINS, as Treasurer of Said County of Greenlee, Appellants, v. FRANK A. WEBSTER, JAMES H. KERBY and GEORGE WEBSTER, as the Administrator of the Estate of REECE R. WEBSTER, Deceased, Appellees
• Court: Arizona Supreme Court

246 P. 543

30 Ariz. 245

COUNTY OF GREENLEE, a Corporation, and W. J. COLLINS, as Treasurer of Said County of Greenlee, Appellants, v. FRANK A. WEBSTER, JAMES H. KERBY and GEORGE WEBSTER, as the Administrator of the Estate of REECE R. WEBSTER, Deceased, Appellees

Civil No. 2426

Supreme Court of Arizona

June 2, 1926

APPEAL from a judgment of the Superior Court of the County of Maricopa. Fred C. Struckmeyer, Judge.

Modified and affirmed.

Mr. H Earl Rogge, Mr. H. A. Elliott and Mr. Dave W. Ling, for Appellants.

Messrs Barnum & Flanigan, for Appellees.

Ross J. McAlister, C. J., and Lockwood, J., concur.

OPINION

Ross, J.

This suit is against the county for a claimed balance for road construction. This is the second time the question of the contractors' right to recover has been presented to this court. A reference to our former opinion (25 Ariz. 183, 215 P. 161) will disclose the facts out of which the controversy grows.

The appellees, to whom we shall refer as plaintiffs, on March 17, 1919, entered into a written contract with the defendant to do certain road construction according to plans and specifications, said contract being awarded plaintiffs as the lowest responsible bidders after the statutory advertisement for bids. Under the contract, payments for the work done and materials furnished were to be upon the basis of the unit bid price for each class of work and material. The contract provided that the contractors should be paid for "extra work" upon the cost-plus plan when not covered by any of the various items or combination of items for which there was a bid price, but before the contractors could recover for such extra work it was required that it be ordered in writing by the defendant's engineer and the price therefor agreed to in writing by the engineer and contractors.

The work over which the dispute arises was designated by the contractors, both in their claim as filed with the board of supervisors and in their contract, as "extra work," and was itemized at actual cost plus fifteen per cent, as called for in the contract.

In our former opinion we held that plaintiffs could not recover on the basis of cost plus, for two reasons: (1) The work was not done under written order of the engineer, and the prices for services not covered by unit price were not agreed upon before the work was done or material furnished as provided in the contract; (2) that the cost-plus feature of the contract found no sanction in the law. We further held that the provisions of the contract providing for alterations in plans and specifications did not authorize the changes made, and that the changes were so radically different from the location of the road as advertised and bid upon as not to be within the terms of the contract. We said plaintiffs' cause of action, as disclosed by the facts, "if anything, (was) a cause of action on quantum meruit and quantum valebat and not upon contract," reversed the judgment, which was in favor of plaintiffs, and remanded the case for further proceedings.

Upon the return of the case to the superior court the plaintiffs amended their complaint by alleging a cause of action for the reasonable value of the labor and materials in doing the construction in the new location of the road caused by the changes in plans and specifications. The defendant county filed several special demurrers to the amended complaint, the overruling of which is assigned as error. Some of the questions raised by demurrers were disposed of in our former opinion, and those we shall not discuss.

In both trials the plaintiffs were awarded judgments, and in the present appeal no question is made of the sufficiency of the facts to support and justify the judgment if the law will permit it. The only questions urged as grounds for reversal are questions of law.

Before the first action was brought plaintiffs made out and filed with the board of supervisors a verified statement of account against the county, stating minutely what their claim was for and specifying each several item and the date and amount thereof. This claim was filed with the board of supervisors within the time provided by law (paragraph 2434, Civ. Code 1913), and before the expiration of the six months after its disallowance the plaintiffs, as the statute requires, brought suit thereon, and, as before stated, based their cause of action upon the contract. No other claim as for quantum meruit and quantum valebat was ever filed with the board, and this appears upon the face of the amended complaint.

It is contended by defendant that a claim for the reasonable value of work and material should have been presented to the board of supervisors for consideration and allowance or disallowance, and, that act not having been performed, the statutory requirements to that effect (paragraphs 2434 and 2439, Civ. Code), had not been complied with and the suit must fall.

It is obvious that if this contention is right the plaintiffs are out of court, for at the time the case was remanded, with directions, the time for filing a claim or demand against the county had long since expired. But we think this contention ought not to prevail. The account as filed and acted upon by the board of supervisors exhibited in great detail all of the items and the actual cost, and it might very well have been made in the original complaint the basis of a cause of action for reasonable value. The officers and agents acting for the county and the plaintiffs misconceived the rule that should have governed them in arriving at a correct and legal basis of adjusting compensation for pieces of work done outside the terms of the contract, but at that the claim of plaintiffs was not so materially different from what it would have been upon a demand for the reasonable value of the services and material. The point made seems to us...