Mathis v. Public School Dist. No. 103, Johnson County, 39127

• Decision Date: 12 December 1953
• Docket Number: No. 39127,39127
• Parties: MATHIS v. PUBLIC SCHOOL DIST. NO. 103, JOHNSON COUNTY.
• Court: Kansas Supreme Court

Page 1082

264 P.2d 1082

175 Kan. 453

MATHIS v. PUBLIC SCHOOL DIST. NO. 103, JOHNSON COUNTY.

No. 39127.

Supreme Court of Kansas.

Dec. 12, 1953.

Syllabus by the Court.

1. Where the action of the trial court in overruling a motion for new trial is not specified as error, trial errors are not subject to appellate review.

2. As in the case of a demurrer evidence against which a defendant directs a motion for a directed verdict must be construed in the light most favorable to the plaintiff and against the defendant.

3. The record in an action to recover the balance claimed to be due a contractor for the digging and construction of a water well for a school district examined, and held, that under the facts, conditions and circumstances set forth and discussed in the opinion the trial court did not err in overruling the demurrer to the plaintiff's evidence or the defendant's motion for a directed verdict.

Roy S. Lowe, George A. Lowe, and Roy Goins Lowe, Olathe, were on the briefs, for appellant.

Robert E. Fabian, Kansas City, argued the cause, and John E. Blake, Bill E. Fabian, and Lawrence Cunningham, Kansas City, were with him on the briefs, for appellee.

PARKER, Justice.

This is an action to recover the balance claimed to the due a contractor for the digging and construction of a water well for a school district. Plaintiff recovered and the defendant appeals.

A preliminary review of the events giving rise to the lawsuit is necessary in order to insure a proper understanding of the issues involved on appellate review. This, based on facts about which there can be no dispute, will be made in the form of a summarized statement without attempting to include everything disclosed by a long and tedious record.

On July 17, 1950, the parties entered into a written contract by the terms of which plaintiff agreed to dig defendant a water well, 10 feet in diameter and 35 feet deep, for an agreed price of $3,260. The agreement referred to contract documents designated as 'general conditions,' 'specifications' and 'drawing.' In addition it contained provisions to the effect that the contractor was to secure and the owner to pay for the necessary materials; that the owner was to make progress payments on the 1st and 15th of each month in an amount equal to 85 per cent of the work completed, payment for materials paid for by defendant to be deducted from the contract sum; that a schedule of prices upon which progress payments were to be based were to be set up before the work was started.

The specifications referred to in the contract provided, among other things, that the intent of the agreement was to provide a complete piece of work, notwithstanding every miscellaneous item necessarily involved, if not particularly mentioned; that the contractor should provide and pay for all materials, labor, water tools, equipment, power and transportation, and other facilities necessary for completion of the work; that the owner, without invalidating the contract, might order extra work or make changes by altering, adding to or deducting from the work, the value of which extra work or changes should be determined by estimates and acceptances in a lump sum before such work was started; that there should be no variations from the regular prices in the proposal; and that payments would be made on the basis of units set forth therein.

Subsequent to the execution of the contract and before the work was started a certain schedule of prices was set up as contemplated by both the master agreement and the specifications and, at least until some time in October 1950, progress payments were made to the contractor on the basis of unit prices therein set forth.

On October 26, 1950, when the well had been excavated to something under 19 feet with a considerable showing of water, plaintiff and the duly elected officials of defendant's governing body met for the purpose of considering conditions existing with respect to the well and at that time, without discussing any change in the contract price, entered into a mutual oral understanding and agreement, whereby the parties agreed it was not going to be necessary to dig the well to the depth specified in the original contract and that instead such well was to be completed at a less depth, to be later ascertained, with an increase in the diameter. Thereafter without any determination by estimates and acceptances, as contemplated by the contract, plaintiff proceeded with the construction of the well and subsequently with the consent and approval of the governing body of the district complete and turned it over to the defendant with dimensions of 20 feet in depth and 12 feet 4 inches in diameter.

Following the completion of the work the parties, who as we have heretofore indicated had not complied with the terms of the contract by reaching an understanding or agreement as to the lump sum to be paid for completion of the well in its changed form, disagreed as to the amount due and payable the contractor for performing that work. Plaintiff then brought this action to recover the sum of $1,239.97, which is conceded to be the amount that would have been due him, under the terms of the original contract, after deducting all progress payments theretofore made by defendant.

Extended reference to the pleadings would merely encumber and be of no value to this opinion. Highly summarized, it suffices to say that under their allegations issues were joined on the question whether, by reason of the parties' subsequent agreement, the original contract was modified as to dimensions only or was modified as to dimensions and contract price for completion of the well.

With issues joined as just indicated the cause came on for trial by jury in district court for the second time. After plaintiff had adduced his evidence defendant demurred thereto. When this demurrer was overruled defendant adduced its evidence. Thereupon, after denying defendant's request for a directed verdict, the court instructed the jury as to the law. Included in these instructions was instruction No. 5, which we pause to note was not objected to in the court below and is not now complained of, wherein the sole factual issue requiring decision by the jury was clearly outlined and defined. It reads:

'It is admitted by the parties that a written contract for the digging of the water well 10 feet in diameter and 35 feet deep and the installation of certain equipment for $3,260.00 was entered into by the parties, and that the parties verbally agreed to a modification of said contract and that the sole matter for your determination is whether plaintiff was to receive $3,260.00 under the contract as modified, or whether he was to receive $2,020.03.

'It is agreed by both parties that plaintiff has been paid $2,020.03, by the defendant paying him $1,221.37 and defendant paying $798.66 for materials used by plaintiff.

'If you find from a preponderance of the evidence that plaintiff was to receive $3,260.00 under the contract as modified then your verdict should be for plaintiff for the amount prayed for. However, if you do not so find then your verdict should be for the defendant.'

After receiving instructions the jury retired to the jury room for deliberation. Eventually it determined the factual issue submitted against defendant, returning a verdict in favor of plaintiff for the full amount sued for, and was discharged. Defendant then filed its motion for new trial wherein it moved the court 'to set aside the verdict rendered and the judgment entered thereon' on divers grounds not now important. When this motion was overruled it perfected the instant...