Rasch v. City of Bloomfield

• Decision Date: 17 October 1967
• Docket Number: No. 52592,52592
• Citation: 153 N.W.2d 718,261 Iowa 544
• Parties: Kenneth M. RASCH, d/b/a Rasch Construction Company, Appellee, Cross-Appellant, v. CITY OF BLOOMFIELD, Iowa, Appellant, Cross-Appellee.
• Court: Iowa Supreme Court

Page 718

153 N.W.2d 718

261 Iowa 544

Kenneth M. RASCH, d/b/a Rasch Construction Company, Appellee, Cross-Appellant, v. CITY OF BLOOMFIELD, Iowa, Appellant, Cross-Appellee.

No. 52592.

Supreme Court of Iowa.

Oct. 17, 1967.

Rehearings Denied Jan. 8, 1968.

D. W. Harris, Bloomfield, for appellant, cross-appellee.

McCarville & Bennett, Fort Dodge, for appellee, cross-appellant.

MASON, Justice.

Kenneth M. Rasch, doing business as Rasch Construction Company, brings this law action against the city of Bloomfield to recover for extra labor performed and materials furnished in the desilting of the silting basin of the city's municipal water reservoir.

A contract, with general and detailed specifications, was prepared by the consulting engineers but not signed by the parties. However, both plaintiff and defendant rely on and consider the contract as binding on them. It was so considered by the trial court.

Defendant admitted owing plaintiff $4247, subject to two small claims and offered to confess judgment in that amount. Plaintiff claimed in excess of $15,000 for additional work and services.

Trial to the court without a jury resulted in judgment for plaintiff for only a portion of his claim, but in excess of the amount defendant admitted owing.

I. Defendant appeals from the court's allowance for additional work for clay removed from the banks of the silting basin, contending the contract provided for the removal of silt from the basin. Defendant maintains the removal of clay from the banks of the silting basin was done by plaintiff in order to provide roads into the bottom of the basin by which he could haul out the silt, this area was not a part of the silting basin and the removal of the clay did not constitute the removal of silt.

Plaintiff has cross-appealed by reason of the court's denial of the full amount of his claim.

II. Bloomfield receives its water supply from Lake Fisher. During the runoff silt is carried down to the lake. In an effort to prevent the deposit of silt which would reduce the lake's capacity a basin had been constructed at the extreme south end to drop the silt from the water and there store it. The silting basin, separated from the main body of the lake by a county road, is connected by four pipes which run through the road. Over the years the silt deposited in the basin up to the flow-pipes, causing silt to drift through to the main body of the lake.

A removal project to renew the capacity of the silting basin became necessary. The purpose was to create a basin ahead of the main body of the lake with capacity to trap additional silt and keep it from carrying over into the lake. Consulting engineers were employed to propose specifications for the project.

A 'Notice of Hearing and Letting Invitation to Bidders' was given, sealed bids were received and plaintiff's proposal was accepted.

Defendant's engineer realized that 20, 30 or possibly 40 thousand cubic yards of silt were present in the basin. Because of the city's budget limitations, it was decided to take bids on the removal of 10,000 cubic yards. Defendant hoped to remove more, with the total quantity to be removed determined by cross sections, one after dewatering and another after completion. As an estimate, for the purpose of bidding, the approximate amount of 10,000 cubic yards was employed. Plaintiff's bid on the estimate of 10,000 yards called for a gross payment of $24,000. He was to be permitted to remove the silt by any method he chose except hydraulic dredging.

Item 1 of the detailed specifications provides for installing temporary overflow pipes, isolating silting area from the main body of the lake and dewatering for a lump sum of $5000. We are told 'dewatering' means pumping out the water and thus isolating the basin area from the main body of the lake. This process was a necessary and separate unit of operation in connection with the number of yards to be removed.

With reference to this item, the contract provides: 'It will be the responsibility of the contractor to place temporary overflow tubes as indicated in the plans to protect the county road during the time the existing corrugated metal pipes are closed and the work area is dewatered.'

Item 2 provides for removal of approximately 10,000 cubic yards of silt from the silting basin and hauling to the designated area at a price of $1.65 per cubic yard; a total of $16,500.

The contract provides: 'Silt removal and disposal. * * * Adequate pumping facilities shall be maintained to keep the area dewartered during the progress of the work and protect the completed work prior to acceptance by the city. * * * It shall be the responsibility of the Contractor to maintain portions of the route which are not permanent roads during prosecution of the work. Upon completion of the work temporary routes shall be returned to original condition.' The silt was to be hauled to a specified dump area and deposited in layers not to exceed seven inches in depth on agricultural land. Uniformity of deposit was not required. However, the contractor was to level the area.

Item 3 provides for all other miscellaneous work required to complete the job, including removal of temporary structures and pipes and cleanup of the job site for a lump sum of $2500.

September 28 plaintiff proceeded to remove the silt from the basin. October 30 the city engineer requested the consulting engineer and two city councilmen to visit the construction site because a preliminary cross section had indicated 10,000 cubic yards of material had been removed. As a result plaintiff was orally instructed to continue the project. The consulting engineer gave no written directions as required by item 18 of the general specifications for the removal of silt over the approximately 10,000 yards referred to in plaintiff's proposal. Plaintiff did not give the engineer written notice of extra cost of additional work as required by item 10 of these specifications.

Plaintiff continued on the project until November 12 when he was instructed by the consulting engineer to stop.

The city engineer made three estimates during the progress of the work. The first, on November 2 when he determined 9400 cubic yards had been removed and approved payment to plaintiff for this amount. At the same time the engineer approved item 1 of the contract as satisfactorily completed. The second estimate was made December 7 when he approved payment for additional silt removed. The engineer determined that 28,000 cubic yards had been removed. Plaintiff said he had removed 3491.4 yards more than the engineer estimated.

In a third estimate the engineer determined that a total of 28,013 cubic yards of silt had been removed. The total amount of material removed exceeded this somewhat. The determination of silt removed was made by taking cross sections of the excavation, a standard procedure provided by the contract to determine quantities.

In his final estimate the engineer approved payment to plaintiff of $53,721.45. This was computed on the basis of $5000 for 100 percent completion of item 1, $46,221.45 under item 2 for removal of 28,013 yards at $1.65 and $2500 for 100 percent completion of item 3.

Previously approved payments totaled $49,174.45, leaving a balance owing subject to the allowance of a $300 offset of $4247, the amount for which defendant offered to confess judgment.

III. Plaintiff claims he should be allowed additional compensation for: (1) dewatering during the time he was removing silt over the approximately 10,000 cubic yards referred to in his proposal (an additional 20 days), (2) silt displaced by the clay roadbeds placed by him in the bottom of the silt basin and for additional storage area provided by the removal of clay from the side of the silt basin, and (3) leveling of all silt over 10,000 cubic yards.

The court denied that portion of plaintiff's claim based on items 1 and 3 of the detailed specifications. Plaintiff makes no complaint of this ruling in his cross-appeal.

The controversy in both appeals is the recovery allowed plaintiff for extra work under item 2. Plaintiff had claimed $33,212.85 for extra labor under this item. The city had approved additional payments of $29,721.45 based on 18,013 cubic yards at $1.65.

IV. Plaintiff contends his proof entitled him to extra compensation for all silt displaced by clay in the basin and this amounted to 2800 cubic yards at $1.65 per yard for a total of $4620.

In performing the work on the project the silt basin was isolated from Lake Fisher and dewatered. Silt was then removed from the basin bed by trucks. As a layer of silt was removed, seepage from the new silt face continually provided water which had to be removed. This dewatering process occurred daily. As the silt removal process proceeded into the silt face plaintiff encountered difficulty because this soft area would not support the trucks and heavy equipment essential in removing the silt.

It became necessary to build roads in the lake bottom to get the trucks in to load and haul the silt. Clay placed on top of the silt would not support the equipment so it became necessary to remove silt and put clay in its place for a usable roadbed.

For every load of clay put in the bottom of the area for road purposes, a load of silt had to be removed. However, plaintiff did not remove this clay before the project was stopped. As...