Harlin & Griffin v. Missouri State Highway Commission

• Decision Date: 15 June 1932
• Docket Number: No. 5133.,5133.
• Court: Missouri Court of Appeals
• Parties: HARLIN & GRIFFIN v. MISSOURI STATE HIGHWAY COMMISSION.

51 S.W.2d 553

HARLIN & GRIFFIN v. MISSOURI STATE HIGHWAY COMMISSION.

No. 5133.

Springfield Court of Appeals. Missouri.

June 15, 1932.

Appeal from Circuit Court, Dallas County; C. H. Skinker, Judge.

"Not to be officially published."

Suit by Harlin & Griffin, a copartnership, and another, against the Missouri State Highway Commission. From a judgment for defendant, plaintiffs appeal.

Affirmed.

J. N. Burroughs, of West Plains, for appellants.

John W. Mather and Ralph M. Eubanks, both of Jefferson City, for respondent.

BAILEY, J.

This is a suit on a contract for road construction entered into between plaintiffs Harlin & Griffin, a copartnership comprised of W. M. Griffin and J. C. Harlin, and the Missouri state highway commission, defendant herein. The petition was in five counts. In the first count it is alleged that the copartnership of Harlin & Griffin was dissolved in 1921, and all accounts settled except such as are included in this action, and that all rights of the partnership in and to this cause of action had been assigned to W. M. Griffin. Counts 1, 2, 3, and 4 set up a certain written contract for construction of section 19 of Route 40, state highway in Douglass county, between plaintiffs and defendant and allege certain breaches thereof on the part of defendant. In the first count it is further alleged that defendant's engineer wrongfully and fraudulently classified a lot of rock, known as ledge rock, as "earth excavation," for which damages are asked in the sum of $4,428; the second count asks damages in the sum of $427.80 for extra work; the third count asks damages in the sum of $1,553 on account of delays and holdups caused by defendant in breach of said contract; in the fourth count plaintiffs seek to recover $620 for interest on payments alleged to have been withheld and for loss of time. The fifth count asks for no money judgment, but seeks a cancellation of a certain written release therein fully set out, on the ground that it was extorted from plaintiffs by fraud and oppression. A demurrer to this petition was filed by defendant and sustained by the circuit court of Dallas county, where the suit had been transferred on change of venue. Plaintiffs refused to plead further, and the court thereupon entered a judgment of dismissal from which order plaintiffs have appealed.

The briefs in this case indicate the demurrer was sustained because of the release pleaded in the fifth count of the petition, heretofore referred to, which release, if sufficient in law, covered all the matters claimed in the other counts of the petition. This is shown by the fifth count wherein it is alleged that on the ____ day of December, 1929, plaintiff presented a claim to the defendant for "further compensation for the work, delays, holdups, outlays, extra work, loss of time etc., on said project; that the items sued on herein were included in and made a part of said claim; that in addition to the items sued on herein said claims also included an item for interest on $57.00 for one year or $3.42; an item for delay and change at borrow pit station 655 to 661, $____, and an item for difference between earth excavation and boulder rock on 807 yards at $1.23 cents per yard of $992.61." That portion of the petition relating to said release is important to the decision of this case and is therefore set out in full, as follows:

"Plaintiff further states that on the ____ day of July, 1930, the defendant through its department of engineers admitted that the said Commission owed the plaintiff said items, in the use of the following written statement:

"`Under Item 2 you claim $3.42 which amount is interest on $57.00 for one year. We are willing to recommend that this item be allowed.'

"`Under Item 7 you claim $798.00 because of an alleged delay in obtaining right of way and for additional cost due to the changing of the borrow pit between stations 655 and 661. Our records do not show that any actual delay occurred though there was a slight increase in the length of haul. In order to settle this item we are willing to recommend that an allowance of two stations for 1,303 cubic yards, or 2,606 station yards of overhaul be allowed, at the contract price of 5 cents per station yard or $130.30.'

"`Under Item 11, with reference to boulders, we have found notations made by our project engineer, which seem to verify the figures presented by you for boulders. These notations total 6,400 cubic yards. The final estimate totals 5,593 cubic yards of boulders. We are therefore willing to recommend that you be allowed payment for the difference or 807 cubic yards at $1.23 (the difference between the price of rock excavation and earth excavation). This would amount to $992.61. Total $1,126.33.'

"`In accordance with the foregoing we have prepared the attached four copies of a release of claims for the settlement of this claim. If this proposed settlement meets with your approval, kindly sign and date each copy at the indicated places and return all copies to this office. Upon receipt of the signed copies, we will recommend that a...