Ryan v. City of Dubuque
| Decision Date | 20 October 1900 |
| Citation | 83 N.W. 1073,112 Iowa 284 |
| Parties | RYAN v. CITY OF DUBUQUE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Dubuque county; M. C. Matthews, Judge.
Action to recover balance due on grading contract. Demurrer to the petition was sustained, and it dismissed. The plaintiff appeals. Reversed.
See Ryan v. City of Dubuque, 106 Iowa, 313, 76 N. W. 703.McCarthy & Kenline, for appellant.
Duffy & Maguire, for appellee.
The grading was done under a written contract, and for this reason no recovery can be predicated on a quantum meruit, as was sought in the second count of the petition. The first count is included in the third, and attention may be limited to the latter. That part of the specifications involved only, with the estimate attached, need be set out:
Said Southern avenue shall be brought to the proper grade line as directed by the city engineer. The filling shall be of sand, clay, earth, or gravel. When excavation is in excess, all material not needed in the construction or protection of the work shall be hauled and deposited in such place, and left in such manner, as the engineer or street committee may direct. The distance hauled shall not exceed 2,500 feet. Quantities in excess, only, will be estimated. All material to belong to the city. Grading to be bid in total. The grading is estimated from an established grade of said street, as shown by profile, cross section, and level notes, on file in the city engineer's office. The city reserves the right to change the grade of said street, thereby increasing or diminishing the amount of grading as estimated; and if, from any change of grade or other cause, the amount of grading is changed, then the amount due and to be paid under this contract shall be increased or diminished in same proportion.”
The plaintiff's bid was $2,679.60. He has been paid $1,201.20, and in this action seeks to recover the balance. During the progress of the work, changes were made by the engineer, which increased the amount of excavation to 8,464 cubic yards, and diminished the amount of filling to 5,880 cubic yards, and thereby greatly enhanced the expense of performing the contract, as the cost of cutting was about seven times that of filling. Compensation is claimed by plaintiff according to this increased cost of the grading done, and, if this be not allowable, then in proportion the grading done bears to that estimated. The city insisted that under the contract a cubic yard of earth excavated and used in filling should be counted but one cubic yard of grading, and that, so computing, the plaintiff had been fully paid. This appears to have been the view taken by the district court in sustaining the defendant's demurrer.
1. The rate of compensation in event of a change in grade is very clearly fixed by the specifications. It was to be increased or diminished in that proportion the amount of grading done bore to that estimated. There is no ambiguity or room for misunderstanding in the language employed. True, plaintiff avers that the word “amount,” in the phrase “amount of grading is changed,” contained in the contract, has a customary meaning among contractors at Dubuque, when used in grading contracts relating to different classes of work, as work, value, or cost, as distinguished from quantity or number of cubic yards, and that the parties to this contract so understood it. But these are very simple words, each having a popular and well-defined meaning, not similar to the other; and it is somewhat remarkable, if true, that the contractors of that locality should so pervert...
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