State v. Feigel

• Decision Date: 20 November 1931
• Docket Number: No. 25784.,25784.
• Citation: 204 Ind. 438,178 N.E. 435
• Parties: STATE v. FEIGEL.
• Court: Indiana Supreme Court

204 Ind. 438

178 N.E. 435

STATE

v.FEIGEL.

No. 25784.

Supreme Court of Indiana.

Nov. 20, 1931.

In Banc.

Appeal from Superior Court, Marion County.

Action by John R. Feigel against the State and the State Highway Commission. From a judgment for plaintiff, the State appeals.

Affirmed.

Superseding opinion in 162 N. E. 55.

Arthur L. Gilliom, former Atty. Gen., Connor D. Ross, Deputy Atty. Gen., and James M. Ogden, Atty. Gen., for the State.

Funkhouser, Funkhouser & Markel, of Evansville, and Henderson & Henderson, of Indianapolis, for appellee.

ROLL, J.

This action was brought by appellee against the state of Indiana and the Indiana state highway commission to recover damages on account of alleged breach of a highway construction contract. The complaint, in one paragraph, alleges, in substance, that on February 19, 1924, appellee and appellant state of Indiana, by and through the state highway commission, entered into a written contract by the terms of which appellee agreed to furnish the material and labor necessary to construct a certain highway in the state of Indiana, known and designated as federal aid project No. 65, section B, extending from the city of Princeton in a northerly direction, for and in consideration of a sum of money mentioned in said contract. A copy of the agreement and appellee's proposal and bond were filed with and made a part of the complaint as Exhibit A; also a copy of the specifications referred to in the contract were made a part of the complaint and marked Exhibit B.

Said contract was entered into by said parties after due and legal advertisement, and was let to appellee as the lowest and best bidder.

The defendant state highway commission had a corps of engineers, the chief of whom told appellee, on February 19, 1924, to proceed with the construction of said improvement in accordance with the terms of his contract. Thereupon appellee assembled his machines, tools, plants, and labor at the site of the improvement project, and made all necessary arrangements and preparations to begin the construction of the same. In order to carry out the contract, of which the highway commission knew, it was necessary for appellee to have considerable equipment, consisting of various kinds of road machinery, a list of which is set out in the complaint, some of which he then owned and some of which he rented for the particular purpose, and such renting was had at a rental expense of $210 per day, which rental was to begin simultaneously with the beginning of said construction and end upon the completion thereof.

Instead of hiring a superintendent, appellee did the superintending of the work himself, and the reasonable value thereof was $10 per day.

In order to properly carry on the work, it was necessary and he did have a permanent organization. The expense of maintaining this permanent organization, which he denominates “over-head” expense, included office rent, telephone, office help, assistant superintendent, and other employees, and this expense was continuous whether the work was going on or delayed, whether the employeeswere idle or at work, and that the expense thereof was $20 per day.

Appellee leased a plot of ground for his construction camp and equipment, and had railroad siding put in for use in such construction.

On March 26, 1924, the commission, by its chief engineer, told appellee to receive shipments of cement and other materials, and to have his equipment ready to begin laying pavement by April 15, 1924, and in pursuance thereto, he ordered cement and other material, and in all things prepared to commence work according to contract.

That, under the contract, it was the duty of the commission to furnish the right of way for said highway, but it failed, neglected, and refused to secure any right of way, so that the work of construction could go on, though often requested by appellee so to do, and, on account of such failure, his overhead expense went on and his equipment lay idle, whereby he suffered loss of $22,777.21 in pay roll, rents, and overhead expense.

When appellee reached a certain point on said highway with his grading, it was discovered that the engineer in charge, through negligence and error, had made a mistake, and thereby required appellee to make a fill of seven inches in excess of the proper depth; but that, after the fill had been made, said engineer discovered his mistake, and appellee was required by said engineer to remove said excess of seven inches of dirt; and because thereof he suffered a total loss of $436.11.

At one place, the engineer had so fixed his stakes that, had said right of way been graded and paved in accordance therewith, it would have been impossible to keep said paving, shoulders, and ditches on the right of way which had theretofore been obtained by said commission, and, because of the delay occasioned thereby, appellee was damaged $276.92.

That all delays and errors as above set out were without any fault on the part of appellee, but due wholly to the failure, neglect, and refusal of the commission to obtain said right of way and said errors and negligence of the engineer in charge; said commission at all times before the beginning of said construction and during the progress thereof had full knowledge of not having the right of way, and of the hindrance, delay, and damages suffered by appellee. Appellee prays for judgment on account of the breach of said contract $21,054.13.

Appellant's demurrer for want of facts was overruled, and thereupon answers in four paragraphs were filed. The first paragraph was general denial; the second a plea of payment; the third alleged, in substance, the entering into of the contract by and between appellee and appellant, through the highway commission, and by express provisions of the standard specifications, which were attached to, and made a part of, the complaint, and which formed a part of the contract between the parties, appellee was invited to examine carefully the site of the work contemplated in the contract, and it was expressly provided that appellant, through said commission, should assume that appellee had judged for and satisfied himself as to the conditions to be encountered, and as to the character, quality and quantity of work to be performed and materials to be furnished.

Appellee did examine the site of the proposed work, and knew, or had the means of knowing, the facts as to the ownership of all lands included in the proposed improvement and any easements on and over said land, and, by reason of such facts, he had knowledge that appellant, through said commission, had not acquired an easement for the location of said highway on the land as proposed in said contract and in the records and files of said commission.

Notwithstanding the fact that appellant, through said commission, had not acquired all of the right of way for the location of said improvement, and with full knowledge of such facts, appellee entered into said contract and undertook the work contemplated therein.

By express provision of said specifications, it was provided that the chief engineer of said commission should have the authority to suspend all or any part of the work when in his opinion conditions were such that the work could not be done properly, in which case appellee was required to store all materials, provide adequate drainage, and take such other precautions as to protect the work already done and to protect the traveling public.

By express provision of said specifications, it was further provided that, when the work should be delayed or suspended through no fault of the contractor, the director should allow a reasonable extension of time for the final completion of the contract, and that, in case of a suspension of the work, the extension should be in direct proportion to the length of time during which the work was suspended.

It was further provided in said contract that the compensation therein should constitute full payment for the work indicated complete in place, including the furnishing of all materials, tools, machinery, equipment, labor, and work incidental thereto, as well as any and all expenses incurred by reason of any cause whatever, except as otherwise provided in said specifications and contract.

Notwithstanding said provisions, plaintiff entered into said contract and undertook the work as proposed herein, and with the full knowledge that all of the right of way had not been procured over the line of said highway as proposed in the plans and specifications therefor; that said contract contained no provisions fixing the time for the procuring of said right of way; and that, notwithstanding said fact, the defendant so entered into said contract and undertook the work therein and accepted the provisions of said contract above referred to as to the extension of time caused by delays, and that said contract was extended from time to time by this defendant through the Indiana state highway commission.

From time to time, as provided in the specifications, appellee accepted monthly estimates as the work progressed, and, upon completion of the work, appellee accepted the final estimate, and a voucher was executed for the amount of said final estimate, which was duly forwarded to the auditor of state, and a warrant issued thereon, which warrant was accepted by appellee as the final payment for the work done and performed under said contract.

Appellee having accepted all benefits of the extension provisions and other provisions of said contract above referred to and by reason of all facts herein alleged is estopped to assert any claim against the state of Indiana arising out of the work done under said contract or from claiming any further compensation for expenses caused by delays.

Appellant's fourth paragraph pleads the same facts as the third, but urges that they constitute a waiver instead of an estoppel.

Appellee demurred to the second, third, and fourth paragraphs of appellant's...