Public Water Supply Dist. No. 8 of Jefferson County v. Maryland Cas. Co., No. 55593

CourtMissouri Supreme Court
Writing for the CourtSEILER
Citation478 S.W.2d 293
PartiesPUBLIC WATER SUPPLY DISTRICT NO. 8 OF JEFFERSON COUNTY, Plaintiff-Appellant-Respondent, v. MARYLAND CASUALTY COMPANY, Defendant-Respondent-Appellant, and L.C.R. Excavating Contractors, Inc., Defendant-Respondent
Decision Date13 March 1972
Docket NumberNo. 1,No. 55593

Page 293

478 S.W.2d 293
PUBLIC WATER SUPPLY DISTRICT NO. 8 OF JEFFERSON COUNTY,
Plaintiff-Appellant-Respondent,
v.
MARYLAND CASUALTY COMPANY, Defendant-Respondent-Appellant,
and
L.C.R. Excavating Contractors, Inc., Defendant-Respondent.
No. 55593.
Supreme Court of Missouri, Division No. 1.
March 13, 1972.
Opinion Modified on Court's Own Motion April 10, 1972.
Motion for Rehearing or to Transfer to Court En Banc Denied
April 10, 1972.

Page 294

Thurman, Nixon, Smith & Howald, Jeremiah Nixon, Hillsboro, for Public Water Supply Dist. No. 8 of Jefferson County.

Joseph H. Mueller, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for Maryland Cas. Co.

SEILER, Judge.

Contractor breached a contract with water district to install a water distribution system. Water district sued surety for the contractor for $122,949.51, the full amount of the performance bond. The surety filed a cross-claim against contractor for indemnification. A supplier sued the contractor and its surety for $17,656.79 worth of materials furnished. The claims were consolidated for trial, and the judgment awarded $17,656.79 to the supplier, and $22,041.71 to the water district. The surety and water district appeal.

On December 21, 1967, Public Water Supply District No. 8 of Jefferson County entered into a contract with L.C.R. Excavating Contractors, Inc. for the construction of a water distribution system. The contract price for the work to be performed was $122,949.51 based upon unit prices and estimated quantities of work to be done and supplies and materials to be used and installed. A performance payment bond was furnished, in the penal sum of $122,949.51, with the Maryland Casualty Company as surety.

The contractor commenced to install the pipe for this subterranean water system in March, 1968. By November, 1968, the contractor had installed about 7,000 feet of cast iron pipe and 60,000 to 65,000 feet of plastic pipe. The contractor began to test the water lines under pressure to determine if they met the contract specifications. The testing revealed that there were numerous leaks in the system. The contractor repaired a number of leaks but in spite of his efforts only a 300 foot section of cast iron pipe passed the required pressure test. In March, 1969, the contractor terminated the testing of the pipe and walked off the project.

Subsequently, the water district and Phillips Products Company, manufacturer and supplier of the plastic pipe, tested and made repairs on the lines. At the time of the trial, about 20,200 feet of water pipe had been tested. Repairs were still being made. Only the 300 feet of cast iron, and about 1,450 feet of plastic pipe passed the pressure test. The water district also completed installation of pipe in five widely scattered areas where the contractor failed to do so.

The court, as the trier of fact in this jury-waived case, found that the water district spent $14,241.78 for a contractor to test and repair some of the worst leaks, $5,800.00 for additional engineer expense to locate leaks, and $7,800.00 to complete the installation of the lines required by the contract. However, the court concluded that the additional engineer expense was not chargeable against the contractor because the engineer representing the water district agreed to waive certain preinstallation tests on the pipe. The court refused

Page 295

to grant damages in the amount needed to replace the system completely with the new pipe because these damages would be remote and speculative since only 20,200 feet of pipe had been tested. The court also indicated that such damages could not be chargeable against contractor because the engineer on behalf of water district relied upon a written guarantee from the manufacturer of the plastic pipe in lieu of the required tests and the water district had filed suit elsewhere to recover damages from the manufacturer of the pipe.

In accordance with the Civil Rule 73.01, V.A.M.R., we review de novo the facts as well as the law, as in an equity case. We recognize and reiterate that '. . . the court's finding is not binding on us; that the question is not merely whether the court's findings are supported by substantial evidence; and that we are to make our independent investigation and reach our own conclusions as to the weight of the evidence . . .' Schmitt v. Pierce, (Mo.Sup. banc), 344 S.W.2d 120, 122; Cleary v. Cleary, (Mo.Sup.) 273 S.W.2d 340, 346. We need not give deference to the opportunity of the lower court to ascertain the credibility of witnesses because their testimony was not in conflict and much of the evidence was documentary, not testimonial.

J. C. Stevens & Associates, Inc., a civil engineering firm, was the engineer employed by the water district for the project. Danny Gardner, an employee of this firm, was the resident engineer responsible for seeing that the work was on schedule, measuring the work performed, observing the testing, and confirming that specifications were being carried out. The water district contends that since the engineer determined that the water distribution system was totally unacceptable, and cheaper to rebuild than repair, the surety is liable for the full amount of the bond. The surety maintains that the evidence showed the water distribution system to be operative, and thus the engineer's opinion must be rejected as speculation and conjecture. The surety also argues that the engineer acting on behalf of the water district waived certain pressure tests required by the contract specifications and that the damages of water district resulted from this waiver.

This contract entrusted many decisions to the engineer. The following provisions were specifications incorporated into the contract:

2.3.01 Engineer's Responsibility and Authority:

All work shall be done under the general supervision of the Engineer. The Engineer shall decide any and all questions which may arise as to quality and acceptability of materials furnished, work performed, rate of progress of work, interpretation of Drawings and Specifications and all questions as to the acceptable fulfillment of the Contract on the part of the Contractor. (italics added).

2.3.02 Engineer's Decisions:

All claims of the Owner or the Contractor shall be presented to the Engineer for decision which shall be made in writing within a reasonable time. All decisions of the Engineer shall be final except in cases where time and/or financial considerations are involved, which shall be subject to arbitration.

2.7.17 Acceptance and Final Payment:

When the Contractor shall have completed the work in accordance with the terms of the Contract Documents, the Engineer shall certify his acceptance to the Owner . . .

Under the clear language of these specifications, the engineer had the authority to determine when the work had been

Page 296

performed in accordance with the contract, and the responsibility to certify this determination to the water district. 'A stipulation in the contract that payment shall be made upon the certificate of the engineer is equivalent to providing that the decisions of the engineer...

To continue reading

Request your trial
11 practice notes
  • The Weitz Co. v. Mh Wash., Nos. 09–3116
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 15, 2011
    ...such that it is necessary to imply such a provision). But see Public Water Supply Dist. No. 8 of Jefferson Cnty. v. Maryland Cas. Co., 478 S.W.2d 293, 295–99 (Mo.1972) (holding that a contractor who agreed that its project would meet certain tests was still contractually liable for providin......
  • School Dist. of Springfield R-12, ex rel. Midland Paving Co. v. Transamerica Ins. Co., R-12
    • United States
    • Court of Appeal of Missouri (US)
    • April 19, 1982
    ...actually incorporated or consumed in the Kickapoo project. Public Water Sup. Dist. No. 8 of Jefferson County v. Maryland Casualty Co., 478 S.W.2d 293, 299(5) (Mo.1972); Wiss v. Royal Indemnity Co., 219 Mo.App. 568, 575, 282 S.W. 164, 165(3) The standard by which the trial court's finding mu......
  • Modine Mfg. Co. v. Carlock, No. 57139
    • United States
    • Missouri Supreme Court
    • May 13, 1974
    ...court to judge of the credibility of the witnesses. Rule 73.01(d), V.A.M.R.; Public Water Supply Dist. No. 8 v. Maryland Casualty Co., 478 S.W.2d 293(1) (Mo.1972). The law of Illinois, where the contracts in question were made and performed and the transactions occurred, governs the substan......
  • State v. Edmonson, No. 17685
    • United States
    • Court of Appeal of Missouri (US)
    • March 11, 1992
    ...recognizes the possibility of juror bias or prejudice, deference to the action of the trial court is no longer in the picture. Land, 478 S.W.2d at 293; State v. Holliman, 529 S.W.2d 932, 939-40 The state suggests that any possible bias found from Ames's answers to specific questions is refu......
  • Request a trial to view additional results
11 cases
  • The Weitz Co. v. Mh Wash., Nos. 09–3116
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 15, 2011
    ...such that it is necessary to imply such a provision). But see Public Water Supply Dist. No. 8 of Jefferson Cnty. v. Maryland Cas. Co., 478 S.W.2d 293, 295–99 (Mo.1972) (holding that a contractor who agreed that its project would meet certain tests was still contractually liable for providin......
  • School Dist. of Springfield R-12, ex rel. Midland Paving Co. v. Transamerica Ins. Co., R-12
    • United States
    • Court of Appeal of Missouri (US)
    • April 19, 1982
    ...actually incorporated or consumed in the Kickapoo project. Public Water Sup. Dist. No. 8 of Jefferson County v. Maryland Casualty Co., 478 S.W.2d 293, 299(5) (Mo.1972); Wiss v. Royal Indemnity Co., 219 Mo.App. 568, 575, 282 S.W. 164, 165(3) The standard by which the trial court's finding mu......
  • Modine Mfg. Co. v. Carlock, No. 57139
    • United States
    • Missouri Supreme Court
    • May 13, 1974
    ...court to judge of the credibility of the witnesses. Rule 73.01(d), V.A.M.R.; Public Water Supply Dist. No. 8 v. Maryland Casualty Co., 478 S.W.2d 293(1) (Mo.1972). The law of Illinois, where the contracts in question were made and performed and the transactions occurred, governs the substan......
  • State v. Edmonson, No. 17685
    • United States
    • Court of Appeal of Missouri (US)
    • March 11, 1992
    ...recognizes the possibility of juror bias or prejudice, deference to the action of the trial court is no longer in the picture. Land, 478 S.W.2d at 293; State v. Holliman, 529 S.W.2d 932, 939-40 The state suggests that any possible bias found from Ames's answers to specific questions is refu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT