The Board of Commissioners of Fulton County v. Gibson

• Decision Date: 14 May 1902
• Docket Number: 19,459
• Citation: 63 N.E. 982,158 Ind. 471
• Parties: The Board of Commissioners of Fulton County v. Gibson
• Court: Indiana Supreme Court

63 N.E. 982

158 Ind. 471

The Board of Commissioners of Fulton County v. Gibson

No. 19,459

Supreme Court of Indiana

May 14, 1902

From Kosciusko Circuit Court; H. S. Biggs, Judge.

Action by Jordan E. Gibson against the board of commissioners of Fulton county for extra work performed and material furnished in the construction of a court-house. From a judgment for plaintiff, defendant appeals.

Affirmed.

G. W Holman, R. C. Stephenson, E. Myers and J. D. Widaman, for appellant.

L. W Royse, B. Shane, I. Conner, J. Rowley, W. C. Bailey and C. A Cole, for appellee.

OPINION

Gillett, J.

The complaint in this action is in two paragraphs, both declaring on the quantum meruit, for extra work done and extra material furnished in and about the construction of a subbasement to a court-house, which said appellant caused to be built at Rochester, Indiana, for the county of Fulton. While this is the first appeal of this particular action, yet the subject-matter of the controversy here involved has been twice before this court. See Myers v. Gibson, 147 Ind. 452, 46 N.E. 914; Myers v. Gibson, 152 Ind. 500, 53 N.E. 646. The appellant, after taking the various preliminary steps required by statute for the building of a court-house, awarded a contract therefor to appellee at and for the price of $ 76,073. The appellee sought by this action to recover the additional sum of $ 19,996.42. He recovered a judgment below in the sum of $ 11,595.81, and from said judgment the appellant prosecutes this appeal.

According to the testimony of the appellee, after the execution of the original contract, and after he had torn down the old court-house, the board of commissioners and the architect proceeded to locate the new building, and fixed a grade line for it. The natural surface of the ground on which the building was to stand was irregular, and it was higher on one side than on the other. After the fixing of the grade line, appellee proceeded to excavate the dirt for the trenches for the walls of the building. The depth of the exterior trenches, when completed, was three feet and ten inches below the grade line, and it was at that level, if the specific provisions of the plans and specifications had been followed, that the footings for the exterior walls should have been put in. Appellee then notified the members of the board of commissioners and the architect that the excavation was ready for their inspection. The lower surface of the ground in the trenches was, as appellee testified, "part of it loam, some of it hard-pan, some sand and gravel, varied at different points all around the building". He further testified upon this subject that "there would be a few feet of sand, and some hard-pan, and on the low side we would come around to sand or loam before we would strike the hard-pan". After examining the trenches, the architect said, in the presence of appellee and the members of the board: "This soil or ground is not of sufficient strength to maintain a building of this character, and I will not permit the building to be placed on that foundation. It will not resist the weight of the building". He then directed that the excavation be carried down to a solid and suitable foundation, and that twelve inches of concrete should be put in below the stone footings indicated in the plans. The board entered an order in its record, on the same day, as follows: "In relation to court-house foundations. The matter of the foundation under the proposed new court-house now being under consideration, and the board being fully advised as to insufficiency of the same at the present depth of excavation, and the architect having directed that a more secure foundation be made, it is hereby ordered that concrete footings be put under the walls of the building, the same to be one foot in thickness, and to project beyond the face line of the present footings at least six inches on either side thereof; said concrete to be composed of one part Portland cement, two parts clean sharp sand, and two parts broken stone, and such excavations shall be made as are requisite and necessary to secure a firm and solid foundation." Appellee did not know that this order had been made until he was advised of it that afternoon, when all of the parties again met. After further consideration, it was suggested by one of the members of the board that, in view of the fact that the foundation would have to be put down much deeper, it would cost but little more to make a subbasement, to put the steam pipes, etc., in, and save the basement rooms for offices. The members of the board asked the architect for an estimate of the cost of the change, but he said that he could not make it at that time. Then they asked the appellee to make an estimate. After making some borings, to ascertain the character of the soil below, and making a calculation as to the cost of the additional labor and material necessary to accomplish the change, appellee met with the three members of the board and the architect in the appellee's temporary office that had been put up on the court-house square. Appellee then informed the members of the board that he thought that the construction of such a subbasement as he understood that they wanted would cost about $ 20,000. It was finally orally agreed that such subbasement should be put in, and that the architect should make an estimate, presumably of the cost, later. The following agreement was then reduced to writing, and signed by the three commissioners and the appellee: "It is hereby stipulated and agreed by and between the board of commissioners of Fulton county, Indiana, and Jordon E. Gibson, contractor, that said Gibson shall remove and excavate the earth, from the bottom of the proposed new court-house, at Rochester, Indiana, to a depth that shall be sufficient to establish a firm and safe foundation thereunder, and concrete the same as is provided in the order therefor, this day made, and is to construct and complete entire a subbasement therein, furnish all material, and iron and steel work, necessary to do a first class job. And it is further agreed that the total cost of which shall not exceed the sum of $ 20,000, the exact amount of said work, under said sum, shall be paid on presentation of a certificate of A. W. Rush, architect. Dated June 12, 1895."

The specifications that were a part of the original contract contained, among others, the following provisions: "The drawings and writings are intended, together, to cover the entire and perfect completion of the work in every respect, and everything described or shown or reasonably implied by them, and which may be necessary for the perfection of the work and general excellence of the whole is to be included and will be required, whether specially mentioned in these specifications or particularly shown by the drawings. The drawings and writings together are intended to cover the entire completion of the building in every particular and anything described or shown or reasonably implied by them, and which may be necessary for the perfection of the work and the general excellence of the whole and to render the building fit for occupancy, is included. The architects will * * * decide on the quantity, quality, and value of the materials offered, omitted, claimed as extra, * * *. On these points the architects' decision will bind all parties. Excavation will be made for all walls, footings, and piers according to the area and the several depths required by the plans and sections, and so that all foundations will go down and rest on solid ground." It is further provided in said specifications that "all footings for piers, columns, and the walls of the building are to be laid below the basement floor line and to the depths shown on sections."

The fourth section of the contract authorized the board to make changes, and provided that "the difference for work omitted, as aforesaid, shall be deducted from the amount of this contract, by a reasonable and proper valuation thereof, and for any additional work required, as aforesaid, in alterations, or modifications of said work, the amount based upon same prices, at which contract is taken, shall be agreed upon, before commencing additions, alterations or modifications aforesaid, as provided and hereinafter set forth in the seventh clause of this contract." The sixth section of the contract is as follows: "Should any dispute arise, respecting the true construction, interpretation or meaning of the drawings or specifications, or of any part thereof, or as to what is extra work, outside of the contract, the same shall be decided by A. W. Rush & Son, architects, and the said board, and their decision shall be final and conclusive." The seventh section of the contract contained the following provision: "No new work of any description done on the premises, or any work whatsoever, shall be considered as extra, unless a separate estimate in writing for the same, before its commencement, shall have been submitted by the contractor to the superintending architects and the board of commissioners, and their signatures obtained thereto."

After the contract of June 12, 1895, was executed, the appellee constructed said subbasement, and in doing so he put in the footings for the exterior walls nine feet below the depth of the trenches as originally dug, and made corresponding changes in the depths of the foundations for the interior walls and tower piers. There is testimony in the record which conflicts with many of the above statements, but we have set out the evidence in outline, except upon the subject of values, that tends to support the verdict. Upon the completion of the building, appellee filed his said claim with the board of commissioners, but the claim was disallowed.

...