Griffis v. State

• Decision Date: 06 October 1943
• Docket Number: 8401
• Citation: 69 S.D. 439,11 N.W.2d 138
• Court: South Dakota Supreme Court
• Parties: WILLIAM C. GRIFFIS, SR., dba William C. Griffis & Son, Plaintiffs, v. STATE OF SOUTH DAKOTA, Defendant

69 SD 439, 11 NW2d 138 (1943)

WILLIAM C. GRIFFIS, SR., dba William C. Griffis & Son Plaintiffs v. STATE OF SOUTH DAKOTA,

Defendant

South Dakota Supreme Court

Original Proceeding

#8401—Motion granted

Wilson & Blethen, Mankato, Minn.

Lewis W. Bicknell, Webster, SD

Attorneys for Plaintiffs

George T. Mickelson, Attorney General

Ray F. Dreary, Asst. Attorney General, Pierre, SD

Attorneys for Defendant.

Opinion filed Oct 6, 1943

ROBERTS, P.J.

This is an original action in this court brought against the State to recover an amount alleged to be due plaintiffs for riprapping of embankment on US Highway No. 12 in Day County. Plaintiffs sought recovery upon six items. The Attorney General moved to dismiss the complaint, and this court granted the motion as to the first four items and denied the motion as to the other items. Griffis v. State 68 SD 360, 2 NW2d 666. Plaintiffs pursuant to stipulation filed an amended complaint, and as to the third cause of action alleged therein the Attorney General has moved to dismiss on the grounds that this court is without jurisdiction to render judgment because the statute (SDC 33.0604) giving consent by the state to be sued on claims disallowed by the State Auditor does not authorize the bringing on actions on claims for which there is no available appropriation, and that plaintiffs for a third cause of action fail to state a claim upon which relief may be granted.

The item in controversy is for “increased labor expense caused by state highway commission of South Dakota forcing stone to be used on this riprapping project of much larger size than specified in the contract and specifications,” and is the third item referred to in the former opinion. Plaintiffs agreed to furnish materials and to perform all labor under a written contract awarded on bids received after public notice. They were to be paid a fixed price of $1.84 per cubic yard for approximately 2,620 cubic yards of riprap fill and 9,450 cubic yards of hand placed riprap. The contract provided that plaintiffs were to furnish materials and perform all labor in conformity with the terms of the contract, the notice to contractors, proposal, plans and the standard specifications for road and bridges, and such notice, proposal, plans and specifications were made a part of the agreement as fully and to the same effect as if the same had been set forth in full in the body of the contract. Under the caption Rip-Rap Fill, there appears the following instruction in the standard specifications: “44.2 Material. This stone shall weigh not less than one hundred and thirty (130) pounds per cubic foot and be of a kind that will not disintegrate under the action of water. From fifty (50) to sixty (60) per cent of the stone shall be ‘Two-man stone’ or larger and the remaining forty (40) to fifty (50) per cent shall be graded in size from ‘two-man stone’ to pieces weighing ten (10) pounds apiece.” And under the caption Hand Placed Rip-Rap, reference to material is as follows: “45.2 Material. The stone for this work shall be sound and durable ‘one-man’ field stone, or rough hewn quarry stone, as nearly rectangular as possible, and sixty (60) per cent of which shall have a volume of not less than two-thirds of a cubic foot.”

Plaintiffs allege that they were required by the engineer in charge to use stones weighing from 700 to 1,000 pounds “on the most of the 12,070 cubic yards of rip-rapping,” which were larger than the stone specified in the contract; that a “two-man” stone weighs approximately 200 pounds and can be lifted onto a truck or other conveyance by two men; that it required power hoists and other expensive equipment to load the heavier stone onto trucks; and that the additional cost of furnishing the larger stones in place of the material specified in the contract was the sum of $3,300, the amount sued for. It is further alleged that “when plaintiffs were required by the representative of the defendant to furnish these stones of excessive size, the plaintiffs applied. to the engineer in charge and, subsequently, to the Highway Engineer at Pierre, South Dakota, and, finally, in December, 1937, William C. Griffis, Sr., one of the plaintiffs, accompanied by his counsel, went to Pierre, South Dakota, and there conferred with the Highway Commission, asking relief either by permission to shut down the job during the winter months, or to be allowed to furnish and use stone of the contract size, or to be allowed additional compensation proportionate to the increased costs caused by the requirements of the engineer in charge of the job, and plaintiffs were then informed by the Highway Commission that the work must proceed and were told to go back and finish the job. The question of whether additional compensation might be allowed was not answered but the plaintiffs were informed that this would have consideration.”

The inspector or engineer in charge had no authority to vary the terms of the contract or to issue instructions contrary to the plans and specifications. The contract so specifically stated. It too contained the usual stipulation providing that no extra work was to be performed by the contractor without a written order. Stipulations requiring a written order for any alterations or extra work are frequently inserted in contracts for public works and have been construed by this court to be binding on the parties and to prevent a recovery for extras by a contractor when there is no compliance with such provision. England v. State, 61 SD 132, 246 NW 628; Kansas City Bridge Co. v. State, 61 SD 580, 250 NW 343.

It is the settled law of this state that an action under the provisions of SDC 33.0604 cannot be maintained if there is no available appropriation to pay the claim for which recovery is sought. Sigwald v. State, 50 SD 37, 208 NW 162; Brams v. State, 63 SD 571, 262 NW 89; Barnsdall Ref. Corp. v. Welsh, 64 SD 647, 269 NW 853. Funds appropriated for highway construction and maintenance are not available for payment of damages for breach of contract. Griffis v. State, supra, and cases cited.

The statute...