Sweeney v. Jackson County
| Decision Date | 11 February 1919 |
| Citation | 93 Or. 96,178 P. 365 |
| Parties | SWEENEY v. JACKSON COUNTY ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.
Action by John W. Sweeney against Jackson County and another. From decree rendered, defendant named appeals. Affirmed.
This is an appeal by the county of Jackson from a decree entered against it, in favor of the plaintiff, John W. Sweeney, in the sum of $82,533.20. By the same decree, it is adjudged that the defendant United States National Bank is entitled to a lien on the sum awarded to the plaintiff, Sweeney, to the amount of $39,996.50.
An outline of the facts leading up to the litigation is as follows: The county had sold bonds aggregating $500,000 under the provisions of chapter 103 of the Laws of 1913, for permanent road construction. By section 24 of that act, the county was to prepare plans and specifications and invite bids in conformity with such plans and specifications. By section 4 of chapter 339 of the Laws of 1913, the state highway engineer was required to act in an advisory capacity to the county court, and upon request was to furnish plans and specifications for road construction. On the 3d day of July, 1913, the county court for Jackson county petitioned the state highway commission to make available to the court the services of the state highway engineer under the provisions of said chapter 339. On the 21st day of July 1913, the highway commission, by resolution, directed the state highway engineer to aid said county in the planning locating, and constructing a system of permanent roads within said county. Copies of these proceedings are in evidence, and may be seen on pages 21 and 22 of the First Annual Report of the Department, for the period ending November 30, 1914. Accordingly, the necessary surveys were made and plans and specifications placed on file in the office of the state highway commission, and bids were advertised for the grading of approximately 14 miles of the Pacific Highway in Jackson county, extending from the California-Oregon line, over the Siskiyou Mountains, down to within about 7 miles of the city of Ashland, Ore., in accordance with plans and specifications then on file with the department. The notice to contractors was given, and the proposal of the plaintiff was accepted on the 31st day of January, 1914, and the resulting contract and specifications are contained in the record. The contract was a standard printed form, furnished by the state engineer.
The complaint alleges the corporate existence of the defendants county of Jackson and United States National Bank. It is then alleged that on January 31, 1914, the plaintiff and the defendant county entered into a contract in writing, which is attached to the complaint, by the terms of which the plaintiff undertook to construct a highway extending from the California line northward a distance of approximately 14 miles, but more particularly described in the contract as from engineer's station 0+00 to station 705+.086. The making of this contract is admitted. It is further alleged That the work and material to be performed and furnished was to be paid for by the county at certain prices named in the contract, and that for all work other than that covered by the contract the county agreed to pay to the plaintiff force account prices as follows: For team, wagon, and driver, $7 per day; for common labor, $3 per day; for gang foreman, $6 per day; and in addition thereto the sum of 10 per cent. of all sums so payable for such force account. This allegation of the complaint is admitted. That the work of construction commenced early in February, 1914, and was completed on or about March 28, 1915, but that during the performance of the work the county abandoned that portion of the highway shown on the plans, which were made a part of the contract between stations 563 and 594, and relocated that portion of the highway and required the plaintiff to construct such relocated portion according to a new and different plan, and by the terms of the contract the plaintiff was entitled to receive compensation for this work at force account prices plus 10 per cent. on the cost of labor. That under date of February 25, 1915, or more than a month before the work was completed, the state highway engineer made a certain pretended "Final Estimate" of the work performed and material furnished by the plaintiff. The allowances of this estimate are set out in detail in the complaint. The complaint further alleges that thereafter the state highway engineer made another and further estimate or allowance to the plaintiff in the sum of $13,700, distributed as follows:
Extra for concrete culvert work at stations 674k90, 526k90, and 615k20 ............................................................ $2,235 00 Extra work Siskiyou, stations 392 to 398 ............................... 950 00 Extra work Steinman overcrossing, stations 563 to 594 ................ 6,000 00 Extra work Dollarhide crossing, station 509 .......................... 2,000 00 Miscellaneous, covering all other bills and claims rendered by J. W. Sweeney ............................................................ 2,515 00
It is alleged that the plaintiff refused to accept the pretended estimate of the state highway engineer and protested to the defendant county that the estimate was unfair, incorrect, and incomplete, and failed to include many items of work performed; that thereupon a special session of the county court of Jackson county was held on March 20, 1915; that the plaintiff appeared before the court and protested against the pretended final estimate, and thereupon it was agreed that the estimate be set aside and that the county court should appoint a disinterested civil engineer to reclassify and reestimate the work performed and to determine the amount due to the plaintiff, and that the county agreed to pay, and the plaintiff agreed to accept, the amount so to be ascertained; and that it was further agreed between the plaintiff and the county that the pretended final estimate should be held and retained by the plaintiff as a current or preliminary estimate. The complaint further alleges that the plaintiff had become indebted to the United States National Bank in a sum in excess of $35,000, and the bank20 demanded that plaintiff assign to it as collateral security for such indebtedness the said pretended final estimate and the moneys due thereunder, which assignment was so made by the plaintiff on April 1, 1915; that thereafter the county court of Jackson county undertook to rescind its agreement with the plaintiff to cause the work to be reclassified and re-estimated, and refused to make any appointment of a disinterested civil engineer for that purpose, and now claims and insists that the pretended final estimate is correct and truly represents the amount due to the plaintiff; and that the defendant bank claims and insists that the pretended final estimate so assigned to the bank as a preliminary or current estimate is a final estimate under the contract. The complaint then sets out 21 specific grounds upon which the alleged final estimate is not final or conclusive against the plaintiff and should be set aside, and alleges in detail the quantities of the different kinds of material moved under the contract and the amount of pipe, concrete, and other material installed on account of which the plaintiff was entitled to receive payment at unit prices under the contract on the whole line, excepting that part between stations 563 and 594, aggregating $162,275.30.
The complaint then alleges that, in the construction of that portion of the highway last above described, namely, on the entire line excepting that part between stations 563 and 594, the plaintiff excavated 42,390.3 yards of material known as "adobe" or "sticky," for which there was no price fixed by the contract and for which plaintiff was entitled to receive a reasonable sum as compensation, which is alleged to be $0.75 a cubic yard, or a total sum of $31,792.72.
The complaint also sets out in detail the quantities of material moved and also the pipe and material placed and installed in structures on that part of the highway between stations 563 and 594. This statement is as follows:
Items. Quantities.
Hardpan ...............................
2,133.4 cubic yards
Loose rock ............................
4,696.3 cubic yards
Solid rock ............................
5,037.6 cubic yards
"Dobie" or "sticky"
...................
6,211.0 cubic yards
Overhaul .............................
46,800.0 cubic yards
Riprap, hand placed ......................
14.5 cubic yards
Clearing ................................
593.8 square rods
Grubbing .................................
60.2 square rods
Concrete pipe, 12-in., in place .........
186.0 lineal feet
Concrete pipe, 24-in., in place ..........
93.0 lineal feet
Reinforcing steel, in place ..........
35,978.7 pounds
Concrete masonry, class A, in place .....
606.0 cubic yards.
That the plaintiff was entitled to receive compensation for this work and material at force account prices in the sum of $39,500.80. The complaint then alleges that the defendant county failed to furnish pl...
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Sweeney v. Jackson County
...Multnomah County; George N. Davis, Judge. On petition for rehearing. Motion denied, and former opinion affirmed. For former opinion, see 178 P. 365. A. Reames and George M. Roberts, both of Medford, for appellant. Chamberlain, Thomas, Kraemer & Humphreys, of Portland, for defendant responde......