Sandy Hites Co. v. State Highway Comm., 36853.

• Citation: 149 S.W.2d 828
• Decision Date: 18 April 1941
• Docket Number: No. 36853.,36853.
• Parties: SANDY HITES COMPANY, Plaintiff-Appellant, v. STATE HIGHWAY COMMISSION, Defendant-Appellant.
• Court: United States State Supreme Court of Missouri

149 S.W.2d 828 SANDY HITES COMPANY, Plaintiff-Appellant,
v.
STATE HIGHWAY COMMISSION, Defendant-Appellant. No. 36853. Supreme Court of Missouri. Division One, April 18, 1941.

[149 S.W.2d 829]

Appeal from Camden Circuit Court. — Hon. C.H. Skinker, Judge.

JUDGMENT, AS TO COUNTS ONE AND TWO, AFFIRMED; AS TO COUNTS THREE AND FOUR, REVERSED.

Sebree, Sebree & Shook and David R. Hardy for plaintiff-appellant.

(1) The Highway Commission is legally responsible for the excess thickness of pavement because it furnished the plans and specifications which the plaintiff faithfully followed in completing the pavement, for when so furnished by the contractee and faithfully followed by the contractor, there is an implied warranty for the sufficiency of such plans and specifications for the purpose and the owner is obliged to accept and pay for the result, whatever it may be. Donnelly — The Law of Public Contracts, sec. 159, pp. 249-252, sec. 287, p. 407; 88 A.L.R. 798; Bentley v. State, 73 Wis. 416, 41 N.W. 338; Filbert v. Philadelphia, 181 Pa. 530, 37 Atl. 545; MacKnight Flintic Stone Co. v. New York, 160 N.Y. 72, 54 N.E. 661; Schliess v. Grand Rapids, 131 Mich. 52, 90 N.W. 700; Friederick v. County of Redwood, 153 Minn. 450, 190 N.W. 801; Louisiana Shipbuilding Co. v. Bing, 104 So. 364; Nebraska v. Commercial Cas. Ins. Co., 248 N.W. 807, 88 A.L.R. 790; Sisters of The Divine Compassion of the State of New York v. McMahon and U.S. Guar. Co., 277 N.Y. Supp. 629; Canuso v. Philadelphia, 192 Atl. 133; United States v. Spearin, 248 U.S. 132, 663 L. Ed. 166; Bush v. Jones, 144 Fed. 942; Penn Bridge Co. v. New Orleans, 222 Fed. 737, certiorari denied 239 U.S. 639, 60 L. Ed. 481; Walsh Const. Co. v. Cleveland, 271 Fed. 701; Passaic Valley Sewer Commrs. v. Tierney, 1 Fed. (2d) 304; Montrose Contracting Co. v. County of Westchester, 80 Fed. (2d) 841; Barber v. Baessell, 85 Fed. (2d) 725; Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465, 97 S.W. 188; Moore v. McCutcheon, 190 S.W. 350, L.R.A. 1915C, pp. 671-679, 88 A.L.R. 797-805. (2) Defendant is legally bound to pay plaintiff for the full thickness of the concrete pavement upon the legal principle of an owner's responsibility for the result of such owner's interference with and control and direction of the contractor's performance of his contract. 9 C.J. 754, sec. 88 (c); Gray v. Wells, 118 Cal. 11; Murphy v. Kassis, 228 N.W. 449; Love, etc., Co., v. Jerome, 25 Ohio Cir. Ct. (N.S.) 149, 37 Ohio Cir. & App. Cts. 98; 9 C.J. 804, sec. 143 (b); Sundmacher v. Lloyd, 69 Mo. 384; Schliess v. Grand Rapids, 131 Mich. 52, 90 N.W. 700; Mannella v. Pittsburgh, 6 Atl. (2d) 70. (3) The State Highway Commission may not avail itself of the provisions of Specification 15-23 of its standard specifications, which denies compensation for excess thickness of pavement and charges the contractor with all State furnished materials used in extra thickness of pavement. Thompson v. St. Charles County, 227 Mo. 220, 126 S.W. 1044. (a) A provision for a penalty for breach of contract is void, unenforceable, and of no effect in law, 15 Am. Jur., pp. 672, 675; Kothe v. Taylor Trust, 280 U.S. 224, 74 L. Ed. 382; Ward v. Haren, 183 Mo. App. 586; In re Diana Shoe Corp., 80 Fed. (2d) 829; 34 A.L.R. 1337. (b) A provision for liquidated damages for breach of contract is unenforceable when the party claiming damages wholly or partially caused the breach. United States v. United Engineering & Contracting Co., 234 U.S. 236, 58 L. Ed. 237; Champlain Const. Co. v. O'Brien, 117 Fed. 271; Jefferson Hotel v. Brumbaugh, 168 Fed. 875; Caldwell and Drake v. Schmulbach, 175 Fed. 434; MacKnight Flintic Stone Co. v. Mayor, etc., New York, 54 N.E. 661; Stearns Co. v. United States, 291 U.S. 61, 78 L. Ed. 653; Beattie Mfg. Co. v. Heintz, 120 Mo. App. 476; Moore v. McCutcheon, 190 S.W. 352. (4) This court may review the evidence to determine whether, as a matter of law, there is substantial evidence to support the verdict, or whether the verdict is plainly not warranted by the evidence, 5 C.J.S., p. 608, sec. 1647; 3 Am. Jur., sec. 890, p. 450; Ettlinger v. Kahn, 134 Mo. 492, 36 S.W. 37; Scroggins v. Met. Street Ry. Co., 138 Mo. App. 215, 120 S.W. 731; Ducoulombier v. Thompson, 124 S.W. (2d) 1105. (5) The plaintiff's action is for damages for breach of the implied warranty of sufficiency of the plans and specifications furnished by the Highway Commission. Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465, 97 S.W. 188; Bentley v. State, 73 Wis. 416, 41 N.W. 338; Canuso v. Philadelphia, 192 Atl. 133; Penn Bridge Co. v. New Orleans, 222 Fed. 737, certiorari denied 239 U.S. 639, 60 L. Ed. 481; Manella v. Pittsburgh, 6 Atl. (2d) 70.

Bradshaw & Fields, Louis V. Stigall and Ralph M. Eubanks for defendant-appellant.

(1) In an action for damages for the breach of an express contract it is error to permit a recovery upon the theory of quantum meruit. 24 R.C.L., p. 234, sec. 509; 6 R.C.L., p. 1032, sec. 389; Clements v. Yeates, 69 Mo. 625; Cole v. Armour, 154 Mo. 333, 55 S.W. 481; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 725; Shoemaker v. Johnson, 200 Mo. App. 209, 204 S.W. 963; Hutchinson v. Swope, 256 S.W. 136; Bay v. Bedwell, 21 S.W. (2d) 205; 3 Southerland on Damages (4 Ed.), sec. 713, p. 2700; 15 Am. Jur., p. 821, sec. 383; Clark v. Smalley Tie & Timber Co., 180 S.W. 437; Security Stove & Mfg. Co. v. American Ry. Express Co., 51 S.W. (2d) 576; Smalley v. Wunderlich, 62 S.W. (2d) 919; Trainor Co. v. Aetna Cas. & Surety Co., 49 Fed. (2d) 772. (2) The petition in this case wholly fails to state a cause of action against the State Highway Commission because: (a) The State Highway Commission cannot be held to respond in damages for work performed in the construction of State highways unless there be a contract for such work and it be entered into in accordance with the statute. Secs. 8116, 8119, R.S. 1929; Hillside Securities Co. v. Minter, 254 S.W. 193; State v. Dierks, 214 Mo. 324, 113 S.W. 1077; Miller v. Alsbaugh, 2 S.W. (2d) 212; Bush v. State Highway Comm., 46 S.W. (2d) 854; Broyles v. State Highway Comm., 48 S.W. (2d) 78; Manley v. State Highway Comm., 82 S.W. (2d) 619. (b) A warranty will not be implied where it is against the express terms of a written contract. Foley v. Euless, 214 Cal. 512; Cowles v. Morris & Co., 330 Ill. 11, 161 N.E. 154. (3) Under the terms of the contracts in this case estimates of the engineer approving for payment the items claimed and the defendant's failure to pay such estimates were conditions precedent to the right of recovery. Snell v. Brown, 71 Ill. 143; Lakeview v. McRitchie, 134 Ill. 203; Gilmore v. Courtney, 158 Ill. 432; Chicago v. McKechney, 205 Ill. 459; Williams v. Chicago S.F. & C. Ry. Co., 112 Mo. 463; Myers v. Union E.L. & P. Co., 66 S.W. (2d) 565; United Const. Co. v. St Louis, 69 S.W. (2d) 639. (4) Where a construction contract requires the subgrade to be brought to the true cross-section shown on the plans, it is error to refuse the defendant an instruction based upon evidence that a true subgrade was not prepared. Jennings v. Cooper, 230 S.W. 328; Alexander v. Wabash Ry. Co., 38 S.W. (2d) 549; Fenton v. Hart, 73 S.W. (2d) 1040.

HYDE, C.

This is an action in four counts seeking to recover the value of additional thickness of concrete pavement, over the amount paid for by the State, on four sections of State highway work. On Count 1 (for $5376.17 on Section E) and Count 2 (for $6232.79 on Section F), the jury found for defendant; on Count 3 (on Section G), the jury found for plaintiff for $4120.62; and on Count 4 (on Section H) the jury found for plaintiff for $2491.95. Both parties have appealed from the judgment entered.

The work was done under a written contract with written plans and specifications, awarded on bids received after public notice in accordance with Section 8116, R.S. 1929 (10 Mo. Stat. Ann., 6900). Plaintiff concedes that it has been paid all amounts due it under the contract. "Plaintiff's action is for damages for breach of the implied warranty of sufficiency of the plans and specifications furnished by the Highway Commission." The assignments of error (and points and authorities) in the briefs go to the question of whether or not such an action may be maintained under the circumstances of this case.

Plaintiff's contract provided that it should construct a concrete pavement 20 feet wide, which would be 9 inches thick at the edges (for two feet towards the center) and 7 inches thick over the rest of its dimensions. All sand and gravel was furnished by the State. Plaintiff was to be paid a fixed price (the amount of his bid) per square yard of pavement constructed. The specifications fixed the elevations of the grade on which the pavement should be constructed.

The contract contained (our italics) the following provisions:

149 S.W.2d 830

"Subgrade Preparation. 1-59. Description. That portion of the graded roadbed upon which surfacing is to be placed is hereby designated as the subgrade. The subgrade shall be constructed so that it will be uniform in density throughout its entire width and will conform to the line, grade and cross-section shown on the plans or as established by the Engineer... .

"1-60C. Rollers ...

"The roller used in preparing the subgrade for a Portland cement concrete base course or pavement shall be a well-propelled light roller weighing not more than five (5) tons which will insure a uniform compaction of the subgrade and will eliminate clods and loose material.

"Where hauling results in forming ruts or other objectionable irregularities, the Contractor shall reshape and re-roll the subgrade before the surfacing is placed.

"1-60D. Finishing. After the subgrade for concrete pavement has been compacted it shall be brought to true shape by the use of an approved subgrade machine, and after rolling it shall be tested by means of a...