Massman Const. Co. v. Lake Lotawana Ass'n

• Decision Date: 09 February 1948
• Citation: 210 S.W.2d 398,240 Mo.App. 469
• Parties: Massman Construction Company, a Corporation, Respondent, v. Lake Lotawana Association, Inc., a Corporation, Appellant
• Court: Kansas Court of Appeals

210 S.W.2d 398

240 Mo.App. 469

Massman Construction Company, a Corporation, Respondent, v. Lake Lotawana Association, Inc., a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

February 9, 1948

Appeal from Circuit Court of Jackson County; Hon. Emory H. Wright Judge.

Judgment reversed.

Warren S. Earhart and Jeter & Earhart for appellant.

(1) The petition failed to plead and the evidence failed to establish a claim upon which relief could be granted to respondent against appellant in this action. The action asserted is on contract. Under the contract the engineer's classification of materials and estimate of quantities is conclusive in the absence of fraud. Fraud was not pleaded or proved. The law is well settled that the parties to a contract for excavation of materials or the furnishing of materials may agree therein that the kinds and amounts of the materials furnished shall be ascertained and measured by an engineer, oftentimes the engineer of a party to the contract and that the determination of such engineer is binding on the parties in the absence of fraud or such gross mistake as would necessarily imply bad faith on the part of such engineer. Williams v. Chicago etc. Ry. Co., 20 S.W 631, 112 Mo. 463, 54 S.W. 689, 153 Mo. 487; Hunt v. Owen Bldg. & Inv. Co., 219 S.W. 138, (Mo. App.) ; Stiers Bros. Const. Co. v. Moore, 158 S.W. 2d 253, (Mo. App.) ; Universal Const. Co. v. St. Louis, 223 S.W. 931, 284 Mo. 89; Myers v. Union Electric L. & P. Co., 66 S.W. 2d 565, 334 Mo. 662. (2) The estimate of the engineer, when provided for in the contract, is final and conclusive upon the parties, in the absence of fraud, even though the contract does not in express terms provide that his decision shall be final and conclusive. Chapman v. K. C. etc. Ry. Co., 21 S.W. 858, 114 Mo. 542. (3) There is no evidence that solid rock was excavated to support the verdict and judgment. (4) Respondent is estopped to attack the correctness of the engineers' estimate. Williams v. Chicago etc. Ry. Co., supra. (5) No evidence of fraud on the part of the engineers in measuring the material excavated by respondent and classifying it for payment under the terms of the contract was introduced by respondent, nor was any proof thereof in evidence. Williams v. Chicago etc. Ry. Co., supra; Civil Code of Missouri, Section 113. (6) The only basis upon which respondent could recover was that appellant's engineer had fraudulently classified solid rock as other material; this instruction submitted the issue of such fraud; and the court erred in refusing to give it. Williams v. Chicago etc. Ry. Co., supra; Freeman v. Berberich, 60 S.W. 2d 393, 332 Mo. 831. (7) The court erred in permitting respondent's witnesses to testify that the two classes of materials to be removed under the contract were "earth" and "any material which had to be blasted," whereas the contract provided that the two classes were "any and all materials except solid rock" and "rock excavation," thereby placing before the jury issues not in the case. Searcy v. Searcy, 193 S.W. 869, 195 Mo.App. 400; Cole v. Armour, 55 S.W. 476, 154 Mo. 333. (8) Respondent's brief misquotes the facts in evidence in violation of Rule 1.08(a). Rule 1.08(a) of the Supreme Court of Missouri; Rule 1.08(c) of the Supreme Court of Missouri. (9) Respondent incorrectly interprets the case of Chapman v. Ry. under the law of which case the engineer's estimate is binding upon respondent and, therefore, respondent's petition must be dismissed for failure to state a cause of action, since it does not allege that such estimate was fraudulently made. Chapman v. K. C., etc., Ry. Co., 21 S.W. 858, 114 Mo. 542. (10) Respondent seeks to prove by evidence introduced for the first time in its brief that it excavated solid rock when it did not so prove by its evidence at the trial. State ex rel. v. Hostetter, 104 S.W. 2d 671, 340 Mo. 1155; Section 54, Civil Code of Missouri.

Roy W. Crimm for respondent.

(1) The engineer's classification and estimates were not made final and conclusive. Respondent can recover upon showing of insufficient payment to it, without more. Mercantile Trust Co. v. Hensey, 205 U.S. 298, 51 L.Ed. 811, 27 S.Ct. 535; Memphis, Clarksville & Louisville R. R. Co. v. Wilcox, 48 Pa. St. 161; Central Trust Co. v. Louisville, St. L. & T. Ry. Co., 70 F. 1st 282, 284; Penker Const. Co. v. U.S., (1942) 96 Ct. Cl. 1, l. c. 37; J. E. Salfisberg & Co. v. St. Charles, 154 Ill.App. 531; Wait's Engineering & Architectural Jurisprudence, Secs. 382, p. 316, and 384, p. 317. (2) Respondent encountered and excavated by explosives and rock quarrying methods, rock or solid rock ledge formation removable properly only by means of explosives or other solid rock quarrying methods, and is entitled to be paid for same as Item IV -- rock. The material excavated, whether shale or soapstone, was solid rock or solid rock ledge formation and its excavation to be paid for as rock under the contract. Fruin v. Crystal R. Co., 89 Mo. 397, 14 S.W. 1st 557, 558, 559; Schlitz v. Akers, 210 Cal. 490, 292 P. 1st 463; Cook v. Jones, (Nov. Scot.) 61 Dominion Law Rep. 524, 525; R. J. Funkhauser Co. v. Fiske & Co., (C. C. A. 3rd) 106 F.2d 679, 680; Okey v. Myers, 117 Ia. 514, 91 N.W. 1st 771; 58 C. J. 805, and n. 3; 39 Words & Phrases 85, 86; 57 C. J. p. 544 -- "shale"; Webster's New Int. Dict. (2 Ed.), p. 2300 -- "Shale"; Dict. of American English (1944), Vol. 4, p. 2084 -- "shale"; 31 C. J., p. 395 -- "include"; 42 C. J., Secs. 525, 527 -- "include"; 50 C. J. 724 -- "properly"; Webster's New Int. Dict. (2 Ed.), p. 1983 -- "properly"; Century Dict., Vol. VI, p. 4777 -- "properly"; Century Dict., Vol. VI, p. 4991 -- "reasonably". (3) Appellant, by adopting by reference in two of its own instructions respondent's No. One instruction, cannot complain of any error or omissions therein. Such instruction was properly given. Peoples Trust & Sav. So. v. Arthaud, (Mo. App.) 22 S.W. 2d 860, 863; Consolidated School Dist. v. West Mo. Power Co., 46 S.W. 2d 174, 181, 329 Mo. 690; Von Eime v. Fuchs, 8 S.W. 2d 824, 827, 320 Mo. 746; Raymond's Mo. Instructions, Sec. 207, Vol. 1, p. 181; Crews v. K. C. Public Service Co., 111 S.W. 2d 54, 58, 59, 341 Mo. 1090. (4) Appellant's requested instruction No. A was properly refused. Williams v. Chicago, etc., Ry. Co., 20 S.W. 1st 631, 112 Mo. 463.

OPINION

Bland, J.

This is an action for the balance claimed to be due under an excavation contract. There was a verdict and judgment in favor of plaintiff in the sum of $ 8521.56, and in favor of defendant in the sum of $ 700 on its counterclaim based upon plaintiff's delay in performing the work. Defendant appealed to the Supreme Court and that court transferred the cause here.

The facts show that on July 14, 1944 the parties hereto entered into a written contract in which plaintiff undertook to make certain improvements to the spillway in the dam at Lake Lotawana in Jackson County, consisting of the construction of a sluiceway approximately 7 feet deep, 13 feet wide [210 S.W.2d 399] and 400 feet long, whereby the water level of the lake could be lowered 7 feet to enable repairs to be made at the top of the dam which impounds the water making the lake. The work consisted of breaking the concrete floor of the existing spillway for the length and width of the sluiceway, excavating the material found thereunder for the required depth, length and width, concreting the sides and bottom of the excavation and installing a gate to control the flow of water. It also involved the excavation of an approach channel between the lake and the entrance to said concrete sluiceway.

The contract provided: "EXCAVATION: Borings along the spillway indicate that the excavation will be in material classified as shale. Bidders should satisfy themselves as to the class of material which will be encountered and its method of removal. It is believed that the rock will not be found but a unit price is requested for rock excavation for use in calculating payments if rock is found. * * *

"ROCK EXCAVATION: It is believed that no rock excavation will be encountered but if material is required to be removed which meets this description, it will be classed and paid for as rock excavation:

"Rock shall be interpreted to include all solid rock ledge formation which can be removed properly only by means of explosives, barring or wedging, or by some other recognized method for quarrying solid rock. It shall also include boulders of one-half cubic yard or more in volume."

The contract also provided that plaintiff should furnish the tools, labor, material and machinery necessary to do the work required at the following prices: "Excavation and grading for sluiceway, including removal of any and all materials encountered except solid rock per cubic yard One Dollar $ 1.00. * * * For rock excavation in either sluiceway or approach channel, per cubic yard Eight Dollars $ 8.00". It also provided: "'Consulting Engineer' or 'Engineer' shall mean Charles A. Haskins, the Consulting Engineer for Lake Lotawana Association. 'Resident Engineer' shall mean the Resident Engineer for Lake Lotawana Association, acting personally or through assistants duly authorized by the Consulting Engineer" It further provided that it shall be the duty of the engineers to see that the contract is carried out in accordance with the plans, specifications and contract provisions, "inspect materials and workmanship, interpret plans and specifications, make such measurements as will determine payments to the contractor, and generally represent the Association on the work".

The contract further provided: "PAYMENT: Not later than the 15th day of each calendar month, the Association will make partial payment to the Contractor on the basis of a...