Otto B. Ashbach & Sons, Inc. v. State
| Decision Date | 06 July 1956 |
| Docket Number | No. 36664,36664 |
| Citation | 247 Minn. 573,78 N.W.2d 446 |
| Parties | OTTO B. ASHBACH & SONS, Inc., Respondent, v. STATE of Minnesota, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. Where trial court's construction of provisions of highway contract between plaintiff and State of Minnesota, relating to method of computing volume of rock-cut excavations performed under such contract appears sound and is not challenged on appeal, only issue presented for determination here is whether evidence sustains finding that plaintiff had not been compensated for 2,734 cubic yards of such excavation.
2. Testimony of parties considered and held sufficient to support trial court's finding on this issue.
3. Where under M.S.A. § 161.03, subd. 17, state has waived immunity from suit and conferred jurisdiction upon district courts of state to hear and try out controversies arising out of highway construction contracts in the same manner as provided for trial of other causes in such courts, Held it thereby places itself in the same class as other litigants and, like them, becomes subject to interest charges on any indebtedness which the court hearing such a cause may determine is due from it.
The judgment appealed from is affirmed.
Miles W. Lord, Atty. Gen., and John H. Rheinberger, Sp. Asst. Atty. Gen., for appellant.
Roland J. Faricy, Harry G. Costello, Jr., and B. Warren Hart, St. Paul, Faricy, Moore & Costello, St. Paul, of counsel, for respondent.
Action by Otto B. Ashbach & Sons, Inc., against the State of Minnesota to recover for a volume of excavation claimed due under a contract for highway construction work. The contract dated January 19, 1948, called for construction work by plaintiff on state trunk Highway No. 35, commencing 4.5 miles east of Soudan and extending to 3.5 miles southwest of Ely. The work to be performed consisted of (1) grading, excavating, and embanking; and (2) the placing of a twelve-inch gravel base and subbase on the section of highway included in the contract.
It was agreed that the contract had been satisfactorily completed by plaintiff, the controversy here centering around the meaning of the contract as it related to 'rock cuts' and whether plaintiff had been paid in full therefor. Section 11.02 of the contract provided that for 'rock cuts' plaintiff would be paid at the rate of $2.88 per cubic yard and further specified that:
Plaintiff contended that under this provision the state in its measurements of rock-cut excavations had failed to include some 11,000 cubic yards thereof for which plaintiff claimed payment at the rate of $2.88 per cubic yard. The trial court was called upon to construe the contract and under its construction determined that plaintiff had not been paid for 2,734 cubic yards of such rock-cut excavations and accordingly that the defendant was indebted to plaintiff therefor in the sum of $7,873.92, plus interest, costs, and disbursements. Included in the trial court's findings were the following:
'8. That under Section 2105.2B, M.H.D. Specs., excavation is classified as Class 'A', 'B', or 'C'.
'That section 2105.2B1 defines Class 'A' excavation as consisting of 'all materials of an earthy nature, however compact they may be, such as earth, loam, clay, indurated clay, hardpan, silt, sand, and loose or cemented gravel; and boulders or detached rocks each having an average diameter of two (2) feet or less.'
'That Section 2105.2B2 defines Class 'B' as excavation consisting of 'all ledge rock, and all boulders and detached rock, each having an average diameter of more than two (2) feet.'
'That Section 2105.2B3, M.H.D. Specs., defines Class 'C' excavation as consisting of 'all materials listed under Class 'A' and 'B', and any other material which may be encountered regardless of its nature.'
'9. That Special Provisions 11.01, at page 13 of the Proposal, provides that
'10. That materials actually excavated by plaintiff within those stations listed above which were classified as Class 'B' excavation under the contract consisted of materials meeting the definition of Class 'B' excavation, as well as materials defined as Class 'A' excavation, under M.H.D. Specs.
'11. Section 11.02 of the Special Provisions provides that,
'That Section 11.02 applies to Class 'A', 'B', or 'C' excavation whenever a rock cut is actually made.
'12. That 'grading sections staked by the Engineer' as used in Section 11.02 of the Special Provisions is the cross section of the roadway to which excavation would be made if the markings on the stakes were followed exactly. That 'staked grade of the roadbed' as used in Section 11.02 of the Special Provisions is the top of the finished grade of the roadbed as required by the contract. That 'overbreak' as used in Special Provisions 11.02 is defined under Section 2105.2L5, M.H.D. Specs., as 'that material in rock cuts which is removed outside of the authorized slope lines.'
'(1) At the backslopes--a volume of excavation between the staked backslopes and slopes distant 18 inches outside thereof, measured horizontally.
'(2) In the roadbed--a volume of excavation between the grade to which excavation was required to be made (subgrade) and a surface 18 inches below the staked grade of the roadbed ...
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Lienhard v. State
...Similarly, when the State waived sovereign immunity a prevailing party could be awarded interest. Otto B. Ashbach & Sons, Inc. v. State, 247 Minn. 573, 579, 78 N.W.2d 446, 450 (1956). Since the rationale for the rule of construction that the State is not bound by a statute unless named ther......
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Alley Const. Co., Inc. v. State, 44298
...that the statute is merely a legislative enactment of the principles established in our decision in Otto B. Ashbach & Sons, Inc. v. State, 247 Minn. 573, 78 N.W.2d 446 (1956). In that case, we allowed prejudgment interest on the grounds that the state, having waived immunity and submitted i......