Tribble v. Yakima Valley Transp. Co.

• Decision Date: 22 March 1918
• Docket Number: 14081.
• Court: Washington Supreme Court
• Parties: TRIBBLE et al. v. YAKIMA VALLEY TRANSP. CO.

171 P. 544

100 Wash. 589

TRIBBLE et al. v. YAKIMA VALLEY TRANSP. CO.

No. 14081.

Supreme Court of Washington

March 22, 1918

Department 1. Appeal from Superior Court, Yakima County; Thomas E Grady, Judge.

Action by W. L. Tribble and others against the Yakima Valley Transportation Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

A. C Spencer, of Portland, Or., Richards & Fontaine, of North Yakima, and C. E. Cochran, of Portland, Or., for appellant.

H. J Snively, of North Yakima, for respondents.

CHADWICK J.

Respondents are contractors engaged in railroad construction. They were awarded the contract to build a certain line of railroad for the appellant. The line extended from the city of Yakima through Selah Gap, through the town of Selah and into the Selah Valley. The work was done, but the parties disagreed upon final settlement. Without reviewing the vast detail with which the record abounds, it may be said that the cause of action set up by respondents rests in allegations that after the contract was entered into it was so radically changed by the appellant as to furnish ground for a recovery upon a quantum meruit for the extra cost of the work and labor performed and for profits lost by reason of the omission of material items. Some of the things performed and done are alleged to have been made necessary by the change in plans and to have been done under the direction and at the instance and requirement of the engineer in charge.

Briefly stated, respondents contend that their bid was made upon a profile showing certain cuts and fills, which, if carried out, would make what counsel calls a 'balanced job,' that is, the cuts would balance the fills with a possible excess of waste material amounting to about 2,000 yards; that after the contract had been entered into the engineer in charge furnished another profile map, which had been made to conform to the demands of the Northern Pacific Railway Company, over whose right of way the line was to be constructed, and which fixed the tangent of the line at 54 feet from the main line of the Northern Pacific, and directed that the work should be done accordingly. It is insisted that this necessitated a change of the line to the south and west of about 4 feet; that by reason of the character of the ground, which was a very steep hillside with outcropping basaltic rock, the wastage was very much greater than was contemplated by the parties when the contract was entered into; that it became necessary to waste the excess material over and to the north side of the Northern Pacific Railway tracks; that this was accomplished by the erection and use of an overhead trestle; that the change in the work demanded and the respondents did by direction of the engineer in charge waste approximately 50,000 yards across the Northern Pacific tracks; and 'that the reasonable value of wasting such material over the grade and across the tracks of the Northern Pacific Railway Company and into the Yakima river was 51 cents per cubic yard, or $24,000.'

It is also contended that because of the change in the line of the road appellant's engineer directed respondents to reduce the cuts from 18 to 16 feet; that this change prevented respondents from excavating blasted material with a steam shovel, as they had contemplated and compelled them to employ hand labor at an extra cost of $12,500.

Other contentions are that, by reason of the change respondents were put to the expense of changing, maintaining, and reconstructing the telegraph lines of the Northern Pacific Railway Company and the Western Union Telegraph Company, to their damage in the sum expended, that is, $734.25; that they were required to pay out for flagmen, operators, and watchmen for the protection of the Northern Pacific Railway Company the sum of $3,654.50; that they were required to tunnel under a rock crusher belonging to the state of Washington; that the amount of material excavated was 1,000 yards, which under the contract would have brought $840 to respondents, but estimated as tunnel work would have been as 100 feet at $45 per lineal foot or $4,500. Respondents credit upon this item the sum of $840, and demand judgment for the balance of $3,660.

Respondents further allege that they were compelled, by reason of the change and the direction of appellant, to level 7,000 yards of material which had been wasted along the Yakima river and along the track of the Northern Pacific Railway Company; that the cost of leveling this material was 50 cents per cubic yard, or $3,500.

It is alleged that because of the change of plans after the contract was entered into a certain fill to the south of the Naches river was reduced from 17,427 cubic yards to approximately 5,000 cubic yards; that respondent's profit on making said fill would have been 7 cents per cubic yard, but the elimination of the fill caused them loss and damage in the sum of $869.89.

Respondents sue for other items, but these were allowed on the admitted settlement between the parties, and will not be further noticed. Respondents submitted claims covering these several amounts. The chief engineer allowed the sum of $8,622.36, being 10 per cent. on the final estimates allowed by the engineer, and the sum of $4,466.07 on other claims made by respondents.

Appellant denies that there were changes except such changes as were provided for in the contract, or, if so, that the change was either material or radical. It insists that the profile upon which the bid was offered was no more than an approximation of the amount of material to be moved; that the legend on the profile:

'NOTE: The quantities, distribution and classification shown on this profile are calculated from slopes and estimated from surface indications. No provision is made for swell or shrinkage except in solid rock. The figures therefrom are entirely approximate and will be altered in accordance with the cross-sections when taken, and also such changes made in distribution as may be found necessary or desirable'

--is a part of the contract, and was notice to the respondents that the profile upon which the bid was made was not binding, but that the line of the road was subject to change at the will of appellant; that the profile was, and was so understood by the parties, to serve no other purpose than as a basis for estimating bids; that the contract provided in terms that changes might be made, and if such changes were made, they were made in accordance with and to be paid for under the terms of the contract. That part of the contract relied upon is as follows:

'The right is reserved by the railroad company to change the line of grade at any stage of the progress of the work. If such change should increase the amount of work to be done, such increased amount will be paid for at the prices herein provided, for the class or classes of work so increased, and if, on the other hand, the work shall be diminished, no allowance will be made on account of anticipated profits on the portion which is eliminated. The quantities shown on maps and profiles upon which the estimate of work to be done is based are exclusively for the purpose of preparing such estimate and canvassing the bids and are not represented as correct. They may be either increased or diminished in amount or classification, as the engineer shall determine, after the work is opened up and during its progress or when the same shall be completed.'

Appellant takes the further position that, if it be held to be otherwise, respondents well knew at the time of making their bid that appellant's road was to be built 54 feet on tangent from the main line of the Northern Pacific tracks, and that it was actually so built by them in keeping with that understanding.

We shall pass the last proposition first. We are convinced that it was understood by appellant and the Northern Pacific Railway at the time the contract was entered into that the new road should be constructed 54 feet on tangent from the Northern Pacific line, but we are not convinced that it was so understood by respondents. Testimony is quoted by appellant, which might, if taken alone, indicate that one of the partners so understood it. But when considered in its setting, and in connection with other testimony, more especially that of the engineer having the work in charge, we are constrained to hold that the jury was warranted in its finding that respondents contracted on the basis of the first profile, and with no present understanding that a change would be made that would necessitate the wastage of any material over the Northern Pacific Railway tracks. We are not unmindful of the charge that the testimony of the engineer, who is not now in the employ of appellant, is unreliable and contradictory of itself, but the weight of the testimony, and the credit of the witness, were all matters for the jury. The material inquiry is not whether the engineer, who was a witness for the respondents, knew, or ought to have known, of the demands of the Northern Pacific Railway Company, but whether he brought that knowledge home to the respondents.

Upon the next proposition we think the question whether the change was so radically material as to give to respondents a right of recovery for the work done by them in excess of that which would be required under the contract was a question of fact for the jury. It is the contention of the appellant that the contract was let upon a unit basis; that it provides in terms that the company shall have the right to make changes, the extra work to be paid for as agreed upon, and if work is omitted, 'No allowance will be made on account of anticipated profits on the portion which is eliminated.' Counsel cite Waite on Engineering Jurisprudence, § 577:

...