Peterson v. State

• Decision Date: 25 May 1926
• Docket Number: 24376
• Parties: EDWARD PETERSON ET AL., APPELLEES, v. STATE OF NEBRASKA ET AL., APPELLANTS
• Court: Nebraska Supreme Court

209 N.W. 221

114 Neb. 612

EDWARD PETERSON ET AL., APPELLEES, v. STATE OF NEBRASKA ET AL., APPELLANTS

No. 24376

Supreme Court of Nebraska

May 25, 1926

Opinion on motion for rehearing of case reported in 113 Neb 546. Former judgment of affirmance vacated and judgment of district court reversed, with directions.

REVERSED.

Heard before ROSE, DEAN, DAY, GOOD, and EBERLY, JJ., and REDICK District Judge. DAY, J., dissents.

OPINION

DEAN, J.

Peterson, Shirley & Gunther, a firm of Omaha contractors, submitted a bid to the department of public works, of Nebraska, wherein it agreed to construct an earth and sand clay road, in Smiley Canyon in Sioux county, for $ 68,613.97, pursuant to federal aid project No. 102A.

This action was begun in Lancaster county to recover $ 47,428.72 which plaintiffs allege is the remainder due them, and unpaid, for the construction of the above-mentioned public highway. A jury was waived. Upon trial to the court plaintiffs recovered a judgment for $ 30,305.54, with interest thereon. From the judgment so rendered the state appealed, and, after argument, an opinion was written which, in all respects, sustained the trial court's judgment. See former opinion, Peterson v. State, 113 Neb. 546, 203 N.W. 1002.

Afterward, on motion of the state, a rehearing was granted. Thereupon the case was again submitted to this court for reexamination following able arguments by the respective counsel. Subsequently a second rehearing was allowed, on the state's application, and much new matter, material to the issues, was presented at the rehearing arguments to which our attention was not formerly directed.

In passing it may be recalled that the federal government is concerned in the construction of "post roads," and the contract therefore provides that the construction works shall be "subject to the inspection and approval of the secretary of agriculture." 39 U.S. St. at Large, ch. 241, p. 355, sec. 6.

In respect of the officers in charge of state highway construction, the contract indicates the following officers and designates their duties:

The engineer in charge of the project is the secretary of the department of public works. He is also designated "the state engineer."

The inspector: "An authorized representative of the engineer assigned to make detailed inspection of any or all portions of the work or material therefor."

The division engineer: "An authorized representative of the engineer in responsible charge of all work and of all project engineers in the division to which he is assigned."

The project engineer: "An authorized representative of the engineer whose duties shall be to see that the work is carried out in accordance with the contract and specifications and perform such duties as are here described as duties of the project engineer."

The "chief of bureau of roads" is the "authorized representative of the engineer in charge of all work in the state."

Subsequent to the submission of and pursuant to plaintiffs' bid, the contract in suit was entered into under date of May 5, 1921, wherein, among other things, it is provided:

"After the grading is completed and before final payment is made therefor, the project engineer will cross-section the road and make careful measurement to determine the units of various items of work performed, as the basis for final settlement. The contractor, in all cases, will be paid for the actual amount of work performed as shown by the final estimates."

Final acceptance by the department of public works is stipulated to mean a written acceptance by the department of public works followed by final payment which is to be in accordance with the engineer's final estimate.

The contract requires prospective bidders "to examine the plans, specifications, and special provisions carefully and make sure that the requirements are fully understood. They must satisfy themselves by personal examination of the road as to the nature of the material to be excavated, the location and accessibility of material and other local conditions affecting the contract." This is so that bidders shall inform themselves in respect of the work to be performed in the project. And this cautionary warning appears in the contract: "Note--Bidders' attention is called to paragraph 62, section 1, standard specifications regarding payment of estimates." Paragraph 62, so far as material here, follows: "Final acceptance by the department of public works is stipulated to mean a written acceptance by the department of public works followed by final payment in accordance with the engineer's final estimate." Any minor work, not specifically mentioned in the contract, but obviously necessary for the proper completion of the work, shall be executed in proper manner by the contractor and he "shall not be entitled to any extra or additional compensation for the same. " Grading shall be estimated and paid for by the cubic yard and measurement shall be made "by cross-sectioning before and after excavation and the volumes determined by the average and area method."

The contract also contains this: "Special provisions covering section A of project No. 102, Sioux county. It is specifically provided and understood in submitting this bid that all explosives which may be required to blast any solid rock or brule clay in solidified form will be furnished to the contractor by the department of public works at a price of fifteen (15) cents per pound. * * * The above-mentioned explosive is composed of T. N. T. made up in cartridges of 1/2 pound size. No caps or fuses will be furnished."

The chief of bureau of roads testified that about "24,000 pounds T. N. T. and a few hundred pounds of dynamite were used in the project," and that ordinarily it was assumed that a pound of explosive would remove a yard of rock, although in some instances it takes more explosives. This evidence seems to support the state's contention that plaintiffs removed approximately 24,000 yards of rock. Plaintiffs contend that much more explosives were used, but there is testimony which tends to prove that they were used to remove quantities of earth on the expressed ground that it effected a saving for the contractors. True, the contractors had the right to use explosives in moving plow land, for which they received 38 cents a cubic yard, if they counted that the most economical method of removal. But the mere fact that explosives were so used did not entitle them to $ 1.80 a cubic yard for earth so removed, that being the contract price for the removal of solid rock. Clearly, plaintiffs had no right to so increase the amount of their compensation.

Notwithstanding the following provision in the contract, there is no record of any claim by the plaintiff company for "extra compensation:"

"In any case, where the contractor deems that extra compensation is due him for work or material not clearly covered in this contract nor ordered in writing by the engineer as an extra, as defined above, the contractor shall notify the engineer of his intention to make claim for such extra compensation before he begins the work upon which he bases the claim. If such notification is not given, or the engineer is not afforded proper facilities by the contractor for keeping strict account of actual cost as defined for extra work, the contractor hereby agrees to waive the claim for such extra compensation. * * * The claim must be passed upon by the department of public works."

The contract expressly provides that any variations from the plans and specifications which may be required by the exigencies of construction will in all cases be determined by the engineer, or chief of bureau of roads, and that no such changes by the contractor will be permitted without the division engineer's written approval, and if the meaning of the requirements of the specifications are in doubt, the contractor shall refer the question to the secretary of the department of public works, whose decisions shall be final and binding on both parties.

If any variations were made from the plans and specifications, above referred to, there is nothing in the record to show that such variations were determined by the engineer, nor that the written approval of the division engineer was obtained therefor, nor does it appear that plaintiffs referred any question in respect of the "meaning" of the requirements of the "specifications" to the secretary of the department of public works for determination. That plaintiffs were well advised of the project into which they were about to enter appears in their acceptance of the...