State ex rel. State Highway Comm. v. Shain

• Decision Date: 20 July 1933
• Docket Number: No. 32794.,32794.
• Citation: 62 S.W.2d 711
• Parties: STATE EX REL. STATE HIGHWAY COMMISSION, Relator, v. HOPKINS B. SHAIN, FRANCIS H. TRIMBLE and EWING C. BLAND, Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

62 S.W.2d 711

STATE EX REL. STATE HIGHWAY COMMISSION, Relator, v. HOPKINS B. SHAIN, FRANCIS H. TRIMBLE and EWING C. BLAND, Judges of the Kansas City Court of Appeals.

No. 32794.

Supreme Court of Missouri, Court en Banc.

July 20, 1933.

Mandamus.

PRELIMINARY WRIT DENIED.

John W. Mather, Jean Paul Bradshaw and Ralph M. Eubanks for relator.

Ira H. Lohman and Irwin & Bushman for respondents.

GANTT, C.J.

Original proceeding in mandamus. Relator seeks to compel the judges of the Kansas City Court of Appeals to set aside its order dismissing the appeal in the case of Euler v. State Highway Commission and to reinstate said case on its docket.

The case was before said court at the March Term, 1931. At that time the judgment was affirmed because of certain defects in the abstract. However, appellant under Rule 15 of said court sought to correct said defects by filing a supplemental abstract. The Court of Appeals ruled that the correction was not authorized under the rule. In an original proceeding in mandamus in this court it was ruled to the contrary, and the Court of Appeals was commanded to proceed in due course to a disposition of the case. [State ex rel. State Highway Commission v. Trimble, 329 Mo. 987, 47 S.W. (2d) 779.]

The State Highway Commission (appellant) then filed a new abstract and brief in said court. Thereupon respondent Euler filed a motion to dismiss the appeal on the ground that the abstract did not comply with Section 1028, Revised Statutes 1929, and Rule 15 of said court.

He also filed a motion to dismiss the appeal on the ground that the statement of the case made by appellant (State Highway Commission) did not comply with Section 1060, Revised Statutes 1929, and Rule 16 of said court.

The section requires a clear and concise statement of the case. The rule also requires a clear and concise statement that the court may be informed of the material facts from the statement without being compelled to glean them from the abstract of the record.

The motions were sustained. In doing so the court said: "We see no escape from the necessity of dismissing the appeal for either one or both of the aforesaid violations of the rules in relation to the presentation of appeals. It is not a matter within our discretion. It is our duty to enforce the rules made to further the purpose and efficient dispatch of business." [Euler v. State Highway Comm., 55 S.W. (2d) 719, l.c. 722.]

The circumstances considered, the statement should speak for itself. It follows:

"In 1924 Ernest H. Euler, a contractor from Kansas came into Missouri. The occasion for his appearance in Missouri was the letting of two contracts for the construction of Sections 5 and 6 of Missouri State Highway No. 6 in DeKalb County, Missouri.

"In contemplation of being awarded the work, the Respondent moved a subcontractor on the ground during the latter part of August, 1924. On the 3rd day of September, 1924, the Appellant sent out to the Respondent the regular `Notice to Proceed,' which is the contractor's authorization to begin work.

"Under the terms of these two contracts signed by Ernest H. Euler and the State Highway Commission of Missouri, no part of the work was to be finally approved and accepted until the whole thing covered in the contract was finished. By the terms of the contract for the construction of Section 5 and also by the terms of the other contract for the construction of Section 6, Mr. Euler had bound himself to complete the work by the 31st day of December, 1924.

"It soon became apparent that the construction of these two sections could not be finished by the Respondent by the 31st day of December, 1924, the completion date in the two contracts. Therefore, the State Highway Commission at the request of Mr. Euler, granted an extension of time and set the completion date for the 18th day of February, 1925. In this connection, we might say that no further extension of time was ever asked by Mr. Euler or granted by the Commission.

"Section 5 was completed and accepted on the 26th day of September, 1926, exactly one year, one month and eight days after the extended completion date of the contract. And Section 6 was completed and accepted on the 9th day of August, 1926, exactly one year, five months and twenty-two days after the extended completion date of that contract.

"Under the provisions of Sections 4-37, 3-8 and 3-39 of these two contracts, the State Highway Commission was authorized to hold back ten per cent of the contract price (the rest being paid over to the contractor as parcels of a mile or so were completed and taken over for maintenance but not finally accepted); and from this retent the Commission was authorized to deduct any liquidated damages provided for in the contract and arising from a breach of the contract. It was provided in Section 4-35 of the contract that if the contractor should not complete the work by the completion date, liquidated damages upon both contracts should be assessed against him in the amount of $25 for each day's delay.

"Pursuant to this provision in the contract, the Commission assessed against the contractor and retained from his retent upon the contract for Section 5 (which he completed one year, one month and eight days late) thirty-five days' delay at $25 per day. And upon Section 6 (which the contractor completed one year, five months and twenty-two days late) the Commission assessed liquidated damages for only fifty-seven days at $25 per day.

"It should be pointed out here that this assessment of liquidated damages was exercised by the Commission only to the extent necessary to compensate it for actual loss due to the contractor's delay. In other words, although the contractor was 403 days late in completing the contract on Section 5, the Appellant assessed liquidated damages for only thirty-five days. And that although the contractor was 537 days late in the completion of the contract on Section 6, the Appellant assessed liquidated damages for only fifty-seven days.

"It should be pointed out that the two contracts signed by Mr. Euler were the regular State construction contracts which contain provisions to the effect that the Appellant's Chief Engineer shall be constituted arbiter of any dispute arising between the contractor and the State as to the interpretation of the contract, the order and manner of prosecuting the work, and the acceptability of the work when completed. These provisions are found in Section 4-29 of the contract. In fact Section 4-38 provides that payments shall only be made upon estimates prepared and approved by the Appellant's Chief Engineer as arbiter.

"Among other provisions, this contract provided that all materials encountered in the roadbed should be classified under three types: (1) `Earth Excavation,' for which the price was 33 cents per cubic yard; (2) `Loose Rock Excavation,' for which the price was 85 cents per cubic yard; and (3) `Solid Rock Excavation,' for which the price was $1.75 per cubic yard.

"Section 77 of the contract provided for the application of the `plow test' for the purpose of determining into which of the three classifications any material encountered should be put. That is to say, all material which could be `satisfactorily loosened with a road plow and four powerful horses' should be classified as earth excavation. The contract then provided that if material were encountered which could not be `loosened satisfactorily with a road plow and four powerful horses but can be loosened with a rooter plow and four powerful horses' should be classified as loose rock excavation. Finally, the contract specified that `rock boulders of more than 13 cubic foot volume and all solid or ledge rock which it is impractical to loosen and handle with a pick and shovel' should be classified as solid rock excavation.

"These two contracts for the construction of Sections 5 and 6 of this highway in Dekalb County had been let on the basis of earth excavation at rate of 33 cents per cubic yard.

"Among other provisions, the contract, in Section 59-13, provided with considerable detail, the manner in which all `mixing and placing' of `concrete masonry' was to be done. In this section of the two contracts it was specifically provided that `concrete shall be placed in freezing weather only with the approval of the engineer and ... concrete shall not be placed against steel forms when the temperature is below 32 degree Fahrenheit.' The `engineer' here referred to, the contract defined as the `chief engineer of the State Highway Commission or his representative.'

"Specification XXIII provided for the placing of guard rails along the side of the road. These guard rails were to be furnished by the State but the work of installing them was a part of the two contracts.

"Mr. Euler being from Kansas and never before having had a contract with the State of Missouri for the construction of highways, executed a `Special Provision' which was attached to and made a part of the regular contracts. Paragraph 14 of this Special Provision provided that the work on these two contracts `shall be diligently prosecuted at such a rate and in such a manner as in the opinion of the engineer (Chief Engineer of the State Highway Department) is necessary for the completion within the time herein specified, it being understood that time is of the essence of this contract.'

"The evidence indicates that soon after Mr. Euler came into Missouri and undertook this work, he began to experience financial difficulties. He sought to have the State accept this work in parcels of a mile or less and to advance him money on such portions so that he might hire `more and better teams.'

"Also it appears that although Mr. Euler had gone over the work before he bid on the undertaking, and although he had had an opportunity to examine the nature of the material to be excavated for the roadbed, yet he encountered a type of material which he had not expected. He described it as...