King v. City of Duluth
| Decision Date | 27 November 1899 |
| Docket Number | 11,793 - (91) |
| Citation | 80 N.W. 874,78 Minn. 155 |
| Parties | GEORGE R. KING and Another v. CITY OF DULUTH |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover a balance due under a contract and a further sum for extra work and materials. The case was tried before Ensign, J., and a jury, which rendered a verdict in favor of plaintiff for $13,334.90; and from an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed.
Contract -- Price of Extra Work -- Charge to Jury.
The parties hereto entered into a written contract whereby the plaintiffs agreed to do certain work in the construction of a system of waterworks for the city. The contract provided that the city engineer should be the sole arbitrator as to all matters of dispute which might arise as to the execution of the work; and, further, that in no case should the contractors be entitled to recover for any extra work or alterations in the plans, unless the price therefor was first determined by the engineer and mutually agreed on in writing by the parties. Changes in the plan of the work were made which necessitated extra work, as plaintiffs claim, and they demanded that the engineer fix the price therefor, and that a written contract be entered into for the doing of the work. The engineer refused to so do. It was necessary that the extra work should be done in order to execute the contract and the plaintiffs did it. Held, that the contract as to extra work was valid, and that the plaintiffs cannot recover compensation therefor without showing a compliance therewith or that the engineer acted in the premises arbitrarily or dishonestly, or by reason of a demonstrable mistake of fact.
J. B. Richards, for appellant.
No recovery for extra work can be had, unless it appears that the compensation has been determined as provided in the contract, or that this provision has been waived by defendant. City of Duluth v. McDonnell, 61 Minn. 288; Shaw v. First Baptist Church, 44 Minn. 22; Johnson v. Howard, 20 Minn. 322 (370); St. Paul & N.P. Ry. Co. v. Bradbury, 42 Minn. 222; Heard v. Dooly, 101 Ga. 619; O'Keefe v. Corporation, 59 Conn. 551; Vanderwerker v. Vermont, 27 Vt. 125, 133; Potter v. Holmes, 65 Minn. 377, 380; Weeks v. O'Brien, 141 N.Y. 199; President v. Pennsylvania, 50 N.Y. 250. There was no waiver by defendant. O'Keefe v. Corporation, supra; Ashley v. Henahan, 56 Oh. St. 559; Weeks v. O'Brien, supra; Stuart v. City, 125 Mass. 102. The contract for the stated consideration of $32,000 was not abandoned, and a new contract made, because the contract provided for everything done and the manner of doing it. St. Paul & N.P. Ry. Co. v. Bradbury, supra; O'Keefe v. Corporation, supra; Ashley v. Henahan, supra. Unless plaintiffs intended to abandon their claim for extra compensation, they should have refused to do the work when ordered by the engineer, and have stood on their legal rights. See also U.S. v. Behan, 110 U.S. 338; Anvil M. Co. v. Humble, 153 U.S. 540; McElwee v. Bridgeport L. & Imp. Co., 54 F. 627; Lake Shore v. Richards, 152 Ill. 59.
J. L. Washburn and W. D. Bailey, for respondents.
Where a person has been agreed on in a contract, who is to fix the price or give an architect's certificate, if he refuses on demand the contractor may do the work and recover a reasonable value. Especially is this true where the contract provides that the engineer may make alterations or additions without affecting the terms or validity of the contract, and that the contractor shall receive reasonable compensation not to exceed prices specified, the prices to be determined by the engineer. Potter v. Holmes, 72 Minn. 153, 157; Starkey v. De Graff, 22 Minn. 431; St. Louis v. Kerr, 153 Ill. 182; Thomas v. Fleury, 26 N.Y. 26; Flaherty v. Miner, 123 N.Y. 382; Peck v. State, 137 N.Y. 372; Doll v. Noble, 116 N.Y. 230; Bowery v. Mayor, 63 N.Y. 336; Nolan v. Whitney, 88 N.Y. 648; Bentley v. Davidson, 74 Wis. 420; Cunningham v. Fourth, 159 Pa. St. 620; U.S. v. Gibbons, 109 U.S. 200.
The parties hereto, on December 16, 1896, entered into a written contract whereby the plaintiffs, for the sum of $32,000, to be paid by the city, agreed to do certain specified work for it in connection with a system of waterworks for the city. The contract was performed by the plaintiffs to the satisfaction and acceptance of the city, and this action was brought to recover a balance of $3,055 due on the contract, and the further sum of $13,837.80 for extra work and material done and furnished to the city. The jury returned a verdict for the plaintiffs for $13,334.90, and the defendant appealed from an order denying its motion for a new trial.
The complaint alleged four causes of action. The first was for the balance of the contract price, as to which the trial court rightly instructed the jury that the plaintiffs were entitled to recover the amount claimed. The second was dismissed by the court, and its ruling is not here complained of. The third was a claim for $247.80, consisting of three items, -- the chipping of pipes to make them fit the joints, the caulking and tightening of joints, and the use by the city of the plaintiffs' men and outfit in making an inspection of the work. The plaintiffs claimed that this was no part of their contract, and that the services were rendered at the request of the city, as an independent undertaking. We find no error in the rulings of the trial court as to this cause of action.
The fourth was a claim for $9,824 for placing 1,228 cubic yards of broken stone in foundation under and on both sides the intake pipe, at the schedule price of $8 per cubic yard, less a credit of $259 for sand, which the plaintiffs were not required to use by reason of a change in the plans. The real controversy in this case arises over this alleged cause of action. A statement of the nature of the work provided for by the contract, and of the terms of the contract, is essential to a clear understanding of the claims of the respective parties.
The city commenced the construction of an intake pipe to be used in connection with its system of waterworks, but before the work was completed the city concluded to let the balance of the work by contract. Plans and specifications and profiles, showing the work done by the city and that remaining to be done, were made, from which it appears that the work to be done was to continue a tunnel commenced by the city until it should open into the bottom of the lake, and then to lay and rivet a 60-inch steel pipe out some 1,500 feet, and place an anchor crib at the end thereof. The original profile showed that the bottom of the lake upon which the pipe was to be laid was for the greater part of its length a smooth surface of sand. Such plans and profiles were the basis upon which contractors were invited to bid for the work. The plaintiffs were the lowest bidders, and a written contract was entered into by the parties for the execution of the work, the here material terms of which are these:
The plaintiffs were to take up the work in all of its parts, as partly completed by the city, and finish the same, in accordance with the plans and specifications, and cover the intake pipe for its entire length with at least five feet of sand or gravel, and place riprap of rock around the submerged crib, and along the line of the intake pipe, as directed, great care to be taken to insure the pipe resting solidly on its foundation and being level and plumb; all work to be done under the direction and superintendence of the city engineer, who was to be sole judge and arbitrator as to the quantity and quality of all material and workmanship required under the contract; and as to all matters of doubt or dispute as to the meaning of the plan, or of any words or terms used in the specifications, his opinion was to be final and binding on the parties.
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