Kieburtz v. City of Seattle

• Decision Date: 18 February 1915
• Docket Number: 11771.
• Citation: 146 P. 400,84 Wash. 196
• Court: Washington Supreme Court
• Parties: KIEBURTZ et al. v. CITY OF SEATTLE.

146 P. 400

84 Wash. 196

KIEBURTZ et al. v. CITY OF SEATTLE.

No. 11771.

Supreme Court of Washington

February 18, 1915

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by G. J. Kieburtz, F. R. Smith, and R. Rountree, copartners as Kieburtz, Smith & Rountree, against the city of Seattle. From a judgment for defendant, plaintiffs appeal. Reversed and remanded, with directions.

Preston & Thorgrimson, of Seattle, for appellants.

Jas. E Bradford and Ralph S. Pierce, both of Seattle, for respondent.

FULLERTON J.

By ordinance dated January 31, 1908, the city of Seattle authorized the construction, as part of its water system, of two certain reservoirs, known in the record as the Beacon Hill reservoirs. Subsequent thereto it caused the basins of the proposed reservoirs to be excavated down to the rough levels of their dimensions, as contemplated by the general plan. On May 24, 1910, the city, through its board of public works, adopted plans and specifications for the completion of the reservoirs. These provided for the excavation of the basins down to their neat levels; the installation of the necessary drains, inlets, outlets, and overflows, the lining of the basins with concrete, and the erection of permanent barriers around them, the grading, topsoiling, and seeding to clover the outer slopes of the reservoirs, the grading putting in sidewalks, curbs, and gutters, on the street bordering on the north of the reservoirs, and, in fine, the details of finished reservoirs. Estimates of the amount of excavation required to bring the basins down to their neat lines, together with estimates of the quantities of materials required to complete the work, were prepared by the city, and a call was made for sealed proposals for the performance of the work in accordance with the plans and specifications adopted. The call required the proposals to be made on a unit basis; that is to say, at so much for each several unit quantity into which the city had divided the work. The appellants in this action submitted such a proposal, which the city accepted, and subsequently a written contract was entered into between them and the city for the performance of the work.

In the course of the performance of the work the city, over the objection of the contractors, directed certain parts of the work contemplated by the contract to be omitted, and, according to the contention of the contractors, made changes in the neat lines of reservoir basins, thereby greatly increasing the amount of excavation, and greatly lessening the amount of refilling and backfilling originally contemplated, to their loss and damage. On the completion of the contract to the satisfaction of the city, the contractors sought to have the matters in dispute adjusted with the city, but, failing therein, brought the present action to recover the losses claimed to have been suffered thereby. The case was tried to a jury, which returned a verdict against the contractors on all of the items in dispute submitted to them, save one, which the city confessed. In due season after the return of the verdict the contractors moved for a judgment notwithstanding the verdict on the items wherein the jury found against them, and, in the alternative, for a new trial. Both motions were overruled, and judgment was entered on the verdict. The contractors appeal.

The first item for which the appellants contend they should have been awarded judgment notwithstanding the verdict is a claim for losses caused by what they conceive to be a change in the plans of the work, made subsequent to the execution of the contract, whereby a certain character of the work was eliminated and another character greatly augmented. It appears that a considerable time elapsed between the date the reservoirs were excavated and the date the city called for proposals for their completion, during which time they were left unprotected from the elements; the result being that a considerable quantity of earth had washed from the sides of the basins to the bottoms thereof, leaving the sides full of gullies and ridges, which were required to be brought to a common surface before the concrete lining of the basing could be put in place. It is the appellants' contention that, prior to bidding on the work, they examined the conditions as they existed on the ground and discovered that the gullies in the sides of the basins extended below the lines of their contemplated surfaces, if the stakes and hubs in place and the protracted measurements given on the plans indicated the true dimensions of the basins; that they interpreted the specifications to mean, in the light of these conditions, that the sides of the reservoirs would be brought to their true surfaces by filling in these gullies either with a cheap form of concrete described in the specifications, or with the earth that had washed therefrom, or with earth that they would be required to excavate from the bottoms of the reservoirs in order to insert the necessary drain and other pipes and to furnish a toe for the support of the concrete with which the sides were to be lined; that, to avoid misunderstandings and mistakes, they took the question up with the city engineer's office, as they were invited to do by the advertisement for proposals, and were assured that their interpretation of the plans and specifications was correct; that, acting upon this information, they submitted a bid of $.72 per cubic yard for excavation and $1.05 per cubic yard for refilling to be measured in place, which bid, while sufficiently remunerative for the work of excavation, were they permitted to perform the refilling work contemplated, was grossly inadequate, were they required to remove the earth excavated entirely from the basins. It further appears that during the progress of the work, when the contractors called for the surface lines of the sides of the basins, the city's engineers set the lines in such a manner as to require such sides to be cut back to the bottoms of the gullies caused by the erosions, thus doing away entirely with any refilling of the sides, and greatly increasing the amount of excavation. The contractors estimated the amount of excavation at 6,800 cubic yards, 4,270 cubic yards of which would be required for refilling the erosion. The city's estimate of the amount of be excavated in its call for bids was the same as that of the contractors--that is, 6,800 cubic yards (no estimate being made of any refilling)--whereas the amount actually required to be excavated and removed from the basin was 12,050 yards. The work cost the contractors $20,500.48, being $11,820 more than the sum paid them by the city for the work, and, as they estimate it, $13,079.98 more than it would have cost them had they been permitted to perform the work in the manner they understood they would be permitted to perform it when making their bid.

The specifications forming a part of the contract, and material to question here in consideration, read as follows:

'Excavation: The contractor shall make such excavation as may be necessary to bring the surface on which the concrete lining is to be placed to a true form and grade. The slopes of the reservoir basins are to be excavated to such a depth as will reduce them to plane surfaces. The depth of this excavation will be determined by the city engineer during the progress of the work. Particular attention is called to the necessity for accurately finishing the surfaces to be concreted, as no extra yardage in concrete will be allowed for areas excavated below grade, unless such excavation below grade is ordered by the engineer in charge. Excavation, as here specified, shall also include the removal of all earth remaining within the neat lines of the reservoir basins, the excavation of all trenches at the toe of slopes, excavation for ribs, tile drains and overflows, the surfacing of the bottom and slopes of the reservoir, where necessary, and, in general, all excavation within the reservoir basins. Excavated material shall be removed from the reservoir basins and deposited at such points as may be directed by the city engineer.

'Excavation in reservoir basins, as specified in the paragraph above, will be paid for at the rate bid therefor per cubic yard, measured in cut only, and the price so bid shall include the cost of making all excavations, loading into wagons, or other means of moving, hauling and dumping and shall also include the labor of trimming the slopes and bottom of the reservoir basins to true form and grade, the furnishing and setting of all necessary guide or slope boards, and everything of whatever kind or nature necessary to secure the finished result.'

'Refilling: Where unsuitable material is found in the reservoir basin, it shall be excavated to the satisfaction of the city engineer, and such excavation will be paid for at the rate bid for excavation per cubic yard. The space so excavated shall be refilled with proper material and thoroughly tamped or rolled into place. The material thus refilled will be paid for at the rate bid for 'refilling' per cubic yard, and the price so bid shall include the cost of rolling or tamping.

'Concrete Filling: When so ordered by the

city engineer, channels, or depressions, eroded in the sides and bottom of the reservoir basins, shall be refilled with concrete which shall be mixed in the proportion of one (1) part of cement to four (4) parts of sand and eight (8) parts of gravel.

'Concrete filling will be paid for at the rate bid therefor per cubic yard in place.

'Grades and Alignment: Grades and lines will be given by the engineer in charge on hubs driven in the bottom and slopes of the reservoir basin.'

'(20) The city engineer shall have the right to make changes in the

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