Saddler v. State

• Decision Date: 06 May 1965
• Docket Number: No. 36768,36768
• Citation: 401 P.2d 848,66 Wn.2d 215
• Court: Washington Supreme Court
• Parties: P. L. SADDLER, Respondent, v. The STATE of Washington, Appellant.

Page 215

66 Wn.2d 215

401 P.2d 848

P. L. SADDLER, Respondent, v. The STATE of Washington, Appellant.

No. 36768.

Supreme Court of Washington, Department 1.

May 6, 1965.

As Modified on Denial of Rehearing

John J. O'Connell, Atty. Gen., Edward E. Level, Asst. Atty. Gen., Olympia, for appellant.

Murray & Hanna, Robert F. Murray, Wenatchee, for respondent.

HUNTER, Judge.

Plaintiff (respondent), P. L. Saddler, was awarded two road-construction contracts by the state of Washington, defendant (appellant): contract No. 4645 (referred to as contract No. 1), for the construction of eight miles of secondary state highway 7--C from its junction with primary state highway No. 7, east of Vantage in Grant County toward Othello; contract No. 4784 (referred to as contract No. 2), for the continued construction of highway No. 7--C, for a distance of approximately 20 1/4 miles.

Separate actions were brought for the asserted breach of each contract, for the payment of work performed and not allowed by the state, and the actions were consolidated for trial in Thurston County. After a five-week trial, tried without a jury, judgments were awarded the plaintiff in both actions.

This appeal is taken from the awards in only those causes of action that concerned: (1) payment for claimed quantities of heavy excavation, and (2) for claimed excessive requirements by employees of the state in the finishing of the subgrade.

Contract No. 1 provided for a unit price payment of 90 cents per cubic yard for the removal of solid rock. The trial court awarded an additional $11,878.30 for performance of this type of excavation. Contract No. 2 provided for a unit price of 42 cents per cubic yard for class A excavation. The trial court awarded an additional $26,517.75 for this class of excavation. For the cost of excessive finishing requirements in the completion of the subgrade, the trial court awarded $13,858.13 under contract No. 1 and $16,845.64 under contract No. 2.

The trial court also directed the state to pay the plaintiff $5,404.59, which was withheld by the state from payments due the plaintiff in lieu of a penalty in that sum assessed against the plaintiff for delay in completion of the contract.

This appeal involves a factual dispute which was resolved by the trial court after a consideration of all the evidence. There is substantial evidence in the record to support the trial court's findings. The real issue is whether the evidence considered by the trial court was properly before it in view of standard specifications in the contracts. The state contends that the specifications are plain and unambiguous and that they expressly prohibit the consideration of evidence which was admitted over the state's continuing objection. The pertinent standard specifications in the contracts are as follows:

'11--1.01. CLASSIFICATION

'Solid Rock Excavation shall include all solid rock in ledges, bedded deposits and unstratified masses and conglomerate deposits so firmly cemented as to present all the characteristics of solid rock and which cannot be removed without drilling and blasting, and all boulders containing a volume of more than one-half cubic yard. All solid rock layers with an overburden of shattered rock or solid rock layers interspersed with strata of clay or similar material will be classified as 'Solid Rock Excavation' for the total depth of excavation in which the solid rock strata constitute not less than 82 per cent of the total depth.

'Common Excavation shall include all other material not classified as Solid Rock.'

('Class A excavation shall include all solid rock encountered; cemented gravel, hard pan and caliche.' Special contract provisions, exhibit No. 6)

'2.02. INTERPRETATION OF ESTIMATES

'The estimate of quantities as shown on the plans or in the specifications shall be used only for comparing bids and determining the amount of the contract. The basis of payment of this contract will be the actual quantities of work performed in accordance with the plans and specifications and as specified therein for payment, and if, upon the completion of the improvement said actual quantities should show either increase or decrease from the quantities shown on the plans or in the specifications, the unit bid prices in the proposal shall still prevail, except as otherwise provided.'

'5.01. AUTHORITY OF ENGINEER

'It is understood and agreed by and between the parties hereto that the work included in the contract is to be done under the direct supervision and to the complete satisfaction of the Director of Highways, or his duly authorized representative, and that the decision of the Director of Highways as to the true construction and meaning of the contract, plans specifications and estimates, and as to all questions arising as to the proper performance of the work shall be final. The Director of Highways shall determine the unit quantities and the classifications of all work done and materials furnished under the provisions of this agreement and his determination thereof shall be final and conclusive and binding upon the Contractor.

'The Director of Highways shall decide any and all questions which may arise as to the quality or acceptability of materials furnished and work performed and as to rate of progress of the work, and all questions as to the acceptable fulfillment and performance of the contract on the part of the Contractor and as to compensation. His decision in such matters shall be final.'

'5.04. CONFORMITY WITH PLANS AND DEVIATIONS

'The Contractor will be governed by such lines, grades and cross sections as may be given by the Engineer in laying out the work and by the Engineer's determination of quantities of work performed.'

'9.01. MEASUREMENT OF QUANTITIES

'The determination of the pay quantities of work performed under the contract will be made by the Engineer based upon the lines, grades and cross sections given or measurements made by him or his assistants. In computing volumes, the method of average end areas will be used for excavation and embankment. Corrections for curvature will be made where deemed advisable by the Engineer. All items will be computed in the units in the proposal, according to well recognized engineering principles, and no local rules or customs shall govern. No allowance will be made for work done or materials placed outside of the lines indicated on the plans or ordered by the Engineer.'

'11.4. MEASUREMENT

'All grading will be measured in excavation in its original position by cross-sectioning. Pay quantities shall be computed to the neat lines of the cross-sections as staked.'

The plaintiff does not dispute the state's determination of the gross yardage of material removed by the plaintiff, as estimated by the 'cross-section' method. The disagreement concerns the state's Classification of the total yardage excavated.

It is the contention of the plaintiff that classification of the material within the gross yardage excavated involves the exercise of discretion; that the record discloses this discretion was arbitrarily and capriciously exercised, and, that the plaintiff therefore was not restricted to the cross-section mode of measurement specified in the contract. Plaintiff relies on the rule as stated in Ward v. Smith, 140 W.Va. 791, 808, 86 S.E.2d 539, 549 (1955), cited by the state:

'The measurement requirement of the specifications, made a part of the contract, could not be disregarded or departed from by the plaintiff without a showing by him of the Existence of some condition which constituted a legal excuse or justification for his failure to satisfy that requirement. * * *' (Italics ours.)

As a further justification for not using the cross-section method of measurement, the plaintiff contends that he did not realize it would be necessary to do his own cross sectioning until it was too late.

Plaintiff, in support of his contention that the classification of the gross yardage required the exercise of discretion, cites L. Romano Engineering Corp. v. State, 8 Wash.2d 670, 714, 113 P.2d 549 (1941), in which the question arose as to the classification of solid rock and class A material that had been excavated. We there said:

'Whether material should be classified as solid rock or class A excavation is admittedly a matter of judgment. Romano testified that, in his judgment, there was (sic) 1,277 cubic yards of solid rock excavation between these stations. Appellant allowed none, and its witnesses testified there was none. Upon personal inspection of the premises, the trial court found solid rock physically present between those stations. Only Romano had testified as to how much there was. Upon this state of the evidence, the trial court was obviously justified in basing its allowance for 1,277 cubic yards on Romano's testimony.'

The trial court, in its oral opinion, concluded that the plaintiff was correct in his contention that the classification of the quantities measured by cross sectioning required the exercise of discretion:

'* * * The testimony of necessity was based Upon estimates, actually based upon estimates on both sides, because the Cross sections were not a positive thing. I think the Court can take judicial notice of the fact that the terrain of both the surface of the ground and surface of the solid rock under the ground is not a flat table. It is rough. It is irregular. * * *' (Italics ours.)

An examination of the contract shows that specification Sec. 9.01, supra, states:

'* * * Corrections for curvature will be made Where deemed advisable by the Engineer. * * *' (Italics ours.)

We believe that the trial court correctly held that the measuring of quantities of classifications did require the exercise of discretion. However, such exercise of discretion by the Director of Highways (or his representative) would nevertheless be binding and final upon the plaintiff under specification Sec. 5.01, supra, in the absence of an unreasonable and arbitrary exercise...