Greenlee County v. Webster

• Decision Date: 15 May 1923
• Docket Number: Civil 2040
• 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 Administrators of the Estate of REECE R. WEBSTER, Deceased, Appellees
• Court: Arizona Supreme Court

215 P. 161

25 Ariz. 183

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 Administrators of the Estate of REECE R. WEBSTER, Deceased, Appellees

Civil No. 2040

Supreme Court of Arizona

May 15, 1923

APPEAL from a judgment of the Superior Court of the County of Graham. W. R. Chambers, Judge. Judgment reversed and cause remanded, with direction that demurrers be sustained.

Mr Claude Hooker, Mr. H. A. Elliott and Mr. Dave W. Ling, for Appellants.

Mr. L Kearney, for Appellees.

OPINION

ROSS, J.

The plaintiffs, as the lowest responsible bidders, were on March 17, 1919, given by the defendant county the contract to construct and improve some thirty-three miles of the Clifton-Springerville road, beginning with section 1 and extending to station 1835-31, section 7. The plaintiffs began the work of actual construction immediately thereafter. The county, acting through its board of supervisors and engineer, in the progress of the work, made many alterations in the plans and specifications, resulting in the alteration of the quantity, location and extent of the work as originally estimated and described in the contract. This action grows out of these alterations, or some of them the plaintiffs claiming that they were unreasonable and had the effect of changing the general character of the contract.

The alterations complained of were all made in section 1 of said road, and after such section was completed and paid for as per the certificates of the county engineer, but before the rest of the road was finished, the plaintiffs made out and presented to the county for allowance their verified demand for $28,048.51, as a balance due them on account of such alterations. This demand was presented to the board of supervisors of defendant county on June 7th and disallowed on September 8, 1920.

The complaint, which was thereafter filed, contains 218 pages of printed matter. It is neither possible nor necessary to do more than refer to its contents in a general way, except those portions thereof that have to do with the right to alter the plans and specifications, and define what shall constitute "extra work." Besides setting out bodily in the complaint the specifications, proposal and contract, and making a part thereof by inference the plans, maps and profiles, the plaintiffs have inserted therein in haec verba their demand against the county.

Just what alterations in the plans and specifications were made and what was done to change the general character of the contract cannot be determined from any allegation of the complaint independent of the demand on the defendant county. There is no positive statement or allegation in the complaint as to what change or alteration was made, its extent or locality. Referring to the demand against the county we find it prefaced by a long argument by the plaintiffs, in which it is stated that two changes in the location of the roadbed had been made, and those changes are therein described as follows:

Change No. 1:

"The original location practically followed the bed of Chase creek, making all work on same easily accessible by wagon, and necessitating that the material excavated be moved only once. Now, the change as made throws the alignment as far as 1,000 feet from the original alingment, changing the general character of items discussed below, making two overhead railroad crossings, and placing alignment above two railroads for the greater part of this change, thus necessitating the moving of the material excavated (different in character from the material on the original location) three different times, causing damage to above-mentioned railroads which had to be repaired at the contractor's expense; the actual cost of such damage is shown in cost sheet hereto attached. Furthermore, it greatly increased the danger of damage to life and property of the inhabitants of Metcalf; this actual damage is shown in cost sheet hereto attached. Furthermore, all materials used upon the construction of this piece of road had to be packed by pack animals and men, instead of by wagon, as could have been done, had the original location been adhered to, thus greatly increasing the cost of the contractors over and above what the cost would have been on the construction of the original location as bid upon a majority of the items contained in the original contract and specifications.

"Under what is designated as change No. 2 by us from station 123-00 to station 156-66, it is our contention that this change did throw in parts of same the alignment entirely across what is known as Chase creek (see map hereto attached), increasing the yardage over and above the original alignment approximately 9,139 cubic yards, and did change the general character of the contract as to material excavated. The original location of this part of the road ran through the common quartizite of the district, and the excavation would have been comparatively light, but the alignment as changed greatly increases the excavation, as stated above, and throws the excavation into a blue irony quartzite, the hardest and most expensive rock in the district to excavate.

"Now, in summary of the above: In the parts of the road that we are not considering, changes as designated by station 71-90 to station 123-00 and station 156-66 to station 277-48.6, alterations were made both in alignment and quantities, etc., but as per our contention above, these alterations were not great enough to change the general character of the work (contract), excepting bridges and class B concrete as shown below, and make the work per unit of the contract, cost the contractors more than the same unit of the contract would have, had the road been allowed to remain in the original place as bid upon by the contractors."

In the specifications furnished prospective bidders the work was classified according to its kind and character, for instance, as "Clearing and Grubbing," "Rock Excavation," "Common Excavation," "Overhaul," "Class A, B, and C Concrete," etc., or twenty-six different items of work and material. The plaintiffs submitted to the defendant county a form proposal containing an estimate of the quantity of each of the twenty-six classifications of work set out in the specifications, wherein they proposed to furnish all necessary machinery and apparatus, and all work and materials to finish the entire project, and to accept as full compensation the amount of the summation of the products of the actual quantities, as finally determined, multiplied by the unit bid prices. In the proposal plaintiffs stated it to be their understanding that the estimated quantities were approximate only, and subject either to increase or decrease, and whichever it might be they proposed to perform all quantities at the unit bid prices. The itemized proposal gave the approximate quantity of each item and the price bid per unit, and the product of these two, as for example:

70,121 cu. yds. excavation (rock) at $1.36 per cu. yd.

$ 95,364.56

1,600 lbs. reinforcing steel at 7 1/2 cent per lb.

120.00

22,000 ft. b. m. timber trestle bridge material, in place,

including bridge iron, at $90.29 per M.

1,986.38

The product of the twenty-six classifications, by the bid price totaled $236,329.42. This total was not the contract price that plaintiffs were to receive for constructing the road, but was for the purpose of comparing bids. Under the terms of the contract it might be increased or decreased. The particular provisions of the contract involved are the following, found in the specifications:

"Alterations. -- The engineer shall have the right to make such reasonable alterations in the plans and specifications as in his judgment are necessary and desirable, and such alterations will not invalidate the contract. Reasonable alterations will be construed to mean alterations in the quantity, location or extent of the work covered by the various items of the bid, but will not be construed to cover any alterations in the general character of the contract.

"All orders making alterations in the plans and specifications shall be given by the engineer to the contractor in writing. Alteration work done by the contractor without such written orders, except in cases of emergency, and acknowledged as such by the engineer, will be at the contractor's own expense and will not be paid for under his contract for this work. The final adjustment, covering increases, decreases, or eliminations, caused by alterations, will be made on the basis of the unit price bid for the item or items concerned, and no allowance will be made on account of any claim for loss of profit due to the alteration.

"Extra Work. -- Alterations or changes in the plans and specifications and new or unforeseen items of work shall be classed as extra work, when they cannot be covered by any of the various items or combination of items for which there is a bid price. The contractor shall furnish such labor, teams, equipment, supplies, and materials as are necessary and perform such extra work as may be ordered in writing by the engineer whenever necessary for the proper completion or construction of the whole work herein contemplated, and he shall make no claim for extra work unless it shall have been done in obedience to such written order.

"The contractor shall receive for such extra work the actual cost of all supplies and materials, including freight, furnished by him, as shown by his paid vouchers, and a reasonable rental charge previously agreed to in writing between the engineer and the contractor for the use of special equipment or machinery, such as steam rollers, steam shovels, concrete mixers, etc.,...