Schull Const. Co. v. Koenig, 10015
| Decision Date | 13 May 1963 |
| Docket Number | No. 10015,10015 |
| Citation | 80 S.D. 224,121 N.W.2d 559 |
| Parties | SCHULL CONSTRUCTION COMPANY, Plaintiff and Appellant, v. William KOENIG and John Koenig, co-partners doing business under the firm name and style of Koenig Bros. Construction Company, Defendants and Respondents. |
| Court | South Dakota Supreme Court |
Austin, Hinderaker & Hackett, Watertown, for plaintiff and appellant.
Bicknell, Holland & Delaney, Webster, for defendants and respondents.
This is a suit for a declaratory judgment between a general contractor and his subcontractor for determination of rights and liabilities under a contract for the construction of certain waste treatment facilities for the city of Watertown. Plaintiff-appellant, the general contractor, will be referred to as the contractor, the defendants-respondents as the subcontractor, and the city of Watertown as the owner.
The contract for the construction was awarded to the contractor by the owner at a public letting on February 15, 1960. Prior to submitting his bid, the contractor obtained from the subcontractor an itemized proposal to do portions of the work for certain prices totaling $136,786.55. The contractor also received proposals for other portions of the work from other subcontractors. Certain of the material was furnished by the owner to be installed by the contractor. With the exception of one item, all prices contained in the proposal of the subcontractor to the contractor were raised in the accepted proposal which forms a part of the contract between the contractor and the owner, the total increase being $13,561.45. Later, some adjustments on these figures resulted from change orders.
Following the acceptance of his bid, the contractor accepted the proposal of the subcontractor and a contract termed 'Accepted Proposal' dated February 15, 1960, but which may have been signed after that date, was executed by the contractor and the subcontractor. This contract contains the same items and prices set forth in the preliminary offer or proposal and the subcontractor agreed to perform and complete such work and to furnish a performance bond acceptable to the contractor. The bond was furnished on March 15, 1960, with the contractor as obligee, and referred to the 'attached contract' between the parties and the specifications and made the same a part of the bond by reference. The contractor and the owner on March 10, 1960, entered into a contract for the entire work which provided that the contractor shall carry builder's risk insurance in the amount of 100% of the insurable value of the project and file a certificate of such insurance with the owner. It is undisputed that this builder's risk insurance was supplied by the contractor at his expenses. This contract also provides that until final acceptance the work was in charge of and under the care of the contractor and that it would rebuild and make good at its expense all injuries and damages to the work before final completion and acceptance; that the contractor would give its personal attention to the prosecution of the work and be present at the site continually during construction; that the contractor could not sublet any portion of the contract without the approval of the engineer and that no subcontract would relieve the contractor of his responsibility under the contract.
During the progress of the portion of the work being performed by the subcontractor at the main lift station, when neither workmen of the subcontractor nor of the contractor were present, a hose used by the subcontractor to provide water to lubricate pumps installed to assist him in by-passing sewerage around the construction work broke or became disconnected and flooded an excavation damaging electrical equipment provided by the owner and installed by another subcontractor. The damage was repaired by the contractor at a cost of $4,784.86. A short time later on Halloween night, after the subcontractor had excavated for a lift station at a different site and was pumping water from the excavation to keep it dry, pranksters or persons unknown moved the discharge hose or pipe so that water ran back into the excavation and damaged electrical equipment of the owner installed by another subcontractor and the cost of rebuilding and reconditioning this damaged equipment in the amount of $3,847.52 was paid by the contractor. The contract was completed and the work found satisfactory and accepted by the owner. The contractor has withheld from payments due the subcontractor an amount sufficient to cover the items of damage above.
The contractor has brought an action for a declaration of rights and liabilities under the contracts alleging that a question has arisen between it and the subcontractor as to liability for the repairs and states that the contractor has no plain, speedy or adequate remedy at law other than 'to obtain a declaratory judgment construing said contracts.' The prayer for relief asks for a declaratory judgment adjudicating the rights and liabilities of the parties under the contracts and settling responsibility for the damages incurred during construction. The complaint does not allege that the subcontractor was negligent. It does not allege a breach of contract. The subcontractor by his answer admitted the execution of a contract to construct a portion of the waste treatment facilities and that the contractor was withholding funds from him, but denied all other matters in the complaint. Judgment was entered directing the contractor to pay to the subcontractor the sum withheld. From this judgment the contractor appeals.
Plaintiff-appellant first contends that the subcontractor was guilty of negligence, either active or passive, and that the same was the proximate cause of the damage and the subcontractor should be charged with responsibility thereof. Liability for negligence was not pleaded and was not be theory on which the case was presented to the trial court, and upon the record before us we are satisfied that defendants-respondents did not consent to the determination of any issue of negligence by the trial court. The plaintiff at no time amended or attempted to amend its pleadings alleging negligence. It was only after the trial court had issued its memoranda opinion and when proposed findings were submitted that plaintiff made any suggestion or intimation that it sought a determination of a fact issue on negligence. Nevertheless the trial court in its memoranda opinion volunteered to say that there was no evidence of negligence on the part of parties...
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Associated Engineers, Inc. v. Job
...the subcontractor expressly agrees to indemnify the contractor, "he is bound by the terms of his contract". Schull Constr. Co. v. Koenig, 80 S.D. 224, 121 N.W.2d 559, 562 (1963). In an earlier case, the South Dakota court stated that a contract of this kind "must be given that construction ......
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Wolff v. Secretary of South Dakota Game, Fish and Parks Dept., 19057
...526 N.W.2d 747, 751; Fullmer v. State Farm Ins. Co., 514 N.W.2d 861, 866 (S.D.1994) (citations omitted); Schull Constr. Co. v. Koenig, 80 S.D. 224,, 227-29, 121 N.W.2d 559, 561 (1963) (citations omitted). The majority states we should affirm the trial court's summary judgment though it was ......
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State v. Morse
...of guilt, this Court has long held that it will not consider issues for the first time on appeal. See Schull Constr. Co. v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963). 2. Apparently relying on the State's appellate brief, the dissent claims that Morse purchased products at Menards......
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Credit Collection Services v. Pesicka, 23946.
...v. Peterson, 474 N.W.2d 90, 95 (S.D.1991); Bottum v. Herr, 83 S.D. 542, 548, 162 N.W.2d 880, 883 (1968); Schull Constr. Co. v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963))). In light of this directly controlling authority, and considering our standard of review, we have no authorit......