Stiers Bros. Const. Co. v. Moore
| Decision Date | 03 February 1942 |
| Docket Number | 25,899 |
| Citation | 158 S.W.2d 253 |
| Parties | STIERS BROS. CONSTRUCTION COMPANY, a Missouri Corporation, Appellant, v. WILLIAM J. MOORE, WARD GOODLOE, and WAYNE H. BROWN, Composing the Board of Trustees of the WEBSTER GROVES SANITARY SEWER DISTRICT, a Municipal Corporation, Respondents |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of St. Louis County, Missouri. Hon Julius R. Nolte, Judge.
Judgment affirmed.
The plaintiff Stiers Bros. Construction Company brought suit against defendant Webster Groves Sanitary Sewer District, a municipal corporation, and William T. Moore, Ward Goodloe and Wayne H. Brown, composing the Board of Trustees of said sewer district. At the close of plaintiff's case, the Trial Court gave and read to the jury an instruction in the nature of a demurrer to the evidence, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. Thereafter the Court overruled plaintiff's motion to set aside the nonsuit and entered its judgment dismissing the cause, from which judgment plaintiff took this appeal.
The petition was in three counts. In substance, Count One alleged that on or about May 22, 1936, defendants invited bids for certain sewer construction work, and in connection therewith furnished plaintiff and others with general instructions, a copy of the contract to be entered into with the successful bidder, a copy of the general conditions under which the work was to be performed, and copies of blue prints, plans, and detailed drawings of said work; that plaintiff thereafter made a bid based upon the statements and representations contained in said paper and documents, and the bid was accepted. Under contract thereafter entered into, plaintiff undertook to construct for defendant the reinforced concrete trunk line sanitary sewers called for in said contract. Part of the work consisted of approximately 700 feet of tunnel, specifically set forth as "sewer in rock tunnel 7' horseshoe shaped."
The petition then alleged performance of the work by plaintiff and acceptance thereof by defendant on or about March 25, 1937.
The petition further alleged that although plaintiff was invited to bid on the construction of the sewer through rock, plaintiff encountered materials other than rock, namely, dirt strata, such as fire clay and soft mud layers; that the plans and specifications contained statements and representations that 700' of said tunnel was through rock, the plans indicating that borings had been made along the proposed sewer route by defendant's agents and engineers; that plaintiff had no knowledge of the subsoil along the route of the sewer, as defendant well knew, but relying on and believing the representations of defendant, its engineers and agents, end the statements contained in the blue prints, plans, and specifications, made its bid thereon and entered into said contract; that after entering into said contract and work plaintiff discovered that defendant's representations were incorrect and untrue.
The petition further alleged that the fire clay and dirt layers encountered made necessary the expenditure of additional time and money on plaintiff's part, above the amount originally anticipated; that because of encountering the fire clay and soft mud layers, plaintiff was unable to control the breakage of the materials met when blasting, and as a result plaintiff was forced to excavate a total of 142 cubic yards of material not contemplated by the original contract and specifications, the reasonable price for which was $ 6 per cubic yard, or a total of $ 852; that plaintiff was forced to use l42 cubic yards of concrete, for lining said tunnel in the space left vacant by the overbreakage of materials found in the tunnel, of the reasonable value of $ 2,456.60.
Plaintiff prayed judgment for the total sum of $ 3,308.60.
Count Two alleged that the contract provided for the excavation of 39,660 cubic yards of class B dirt, to be paid for at the rate of $ 1 per cubic yard; that although plaintiff performed this work, plaintiff was paid for excavating only $ 38,336.39 cubic yards, leaving a balance due it of $ 1,323.61, for which sum plaintiff prayed judgment.
Count Three alleged that the contract provided that plaintiff do rip rap paving in the construction of said sewer, at the rate of 10 [cents] per square foot; that although such service was performed by plaintiff, in that it paved 13,910.74 square feet of surface with rip rap, it had been paid only $ 1,185.40, leaving a balance due it of $ 205.67, for which sum plaintiff prayed judgment.
The evidence shows that defendants furnished to bidders an official proposal, which contained a list of the items of work contemplated, and showed quantities and unit prices. In the first part of the proposal, the tunnel is referred to as a "plain concrete lined tunnel." In that part of the proposal which contained quantities and unit prices, the item for the tunnel, item 11, reads as follows: "Completed sewer in rock tunnel, 7' horseshoe shaped, (quantity) 700 lin. ft., (unit price) $ 40.00 -- $ 28,000." Elsewhere in the specifications it is also referred to as "rock tunnel" or "tunnel in rock." On the plans, a part of the contract, it is called "7' horseshoe shaped tunnel." The profile map of the tunnel section, which is expressly made a part of the contract, shows certain symbols, which indicate that the rock is from ten to thirty-five feet above the arch of the tunnel from portal to portal, and also contains the following:
"The instructions to bidders," also a part of the contract, has this provision:
The contract also contained the following provisions:
The contract also provides:
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