United Const. Co. v. City of St. Louis
| Decision Date | 14 March 1934 |
| Docket Number | 31,174 |
| Citation | 69 S.W.2d 639,334 Mo. 1006 |
| Parties | UNITED CONSTRUCTION COMPANY, Respondent, v. CITY OF ST. LOUIS, Appellant |
| Court | Missouri Supreme Court |
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS.
REVERSED AND REMANDED WITH DIRECTIONS.
All concur except Hays J, absent.
The plaintiff construction company seeks to recover by the first count of its petition a balance, over what has been paid it, for constructing a tunnel sewer under contract with the defendant city. The defendant let the contract for construction this sewer of 6000 feet in length to plaintiff as the lowest bidder under plans and specifications prepared by the city. The sewer in question is designated as Section A, Ohio-Montrose Public Relief Sewer, and is part of a larger system of sewers, the construction of which was authorized by a duly passed ordinance of defendant city. This Section A of the sewer system, the construction of which was contracted between plaintiff and defendant, consisted in small part of what is designated as open cut work but was very largely a tunnel with a varying depth under the surface of a few feet up to 60 or 70 feet. When completed the sewer was a horseshoe shaped tunnel with the arch at the top and lined with concrete to a thickness of from 6 to 12 inches. The completed sewer tunnel commenced at the south end with an inside diameter of 5 feet and continuing at that size for about 2000 feet and then changed to 7 feet in diameter for the balance of the distance--that is, there was approximately 2000 feet of 5-foot, sewer tunnel and 4000 feet of 7-foot sewer tunnel constructed by plaintiff under contract with defendant. The work undertaken by plaintiff was to excavate or drive the tunnel and line it with concrete or cement in order to prevent its caving in and becoming obstructed. It is apparent that the two principal factors determining the cost of construction are the size of the tunnel as measuring the amount of excavation and the thickness of the concrete lining as measuring the necessary amount of concrete work. It was necessary that the size of the excavated tunnel be sufficient to include the, thickness of the concrete lining when that, was determined and that the thickness of the concrete lining be such as to support the roof of the tunnel and to completely fill the excevated space. The thickness and character of the tunnel roof to be supported became and is the controverted factor in this branch of the case. The contract embodying the plans and specifications provided that the concrete lining of the sewer at the bottom and on the sides up to the spring of the arch, that is, to where it began to round off, should have a minimum thickness of 6 inches and the arch above this medium line should have a thickness dependent on the character and thickness of the rock (limestone) and overlying above and overlying the tunnel sewer. The contract specified three thicknesses of the concrete lining over the arch designated by letters A, B and C. Type C was to be 6 inches thick, making a uniform concrete lining, of 6 inches thick in this type and was to be used wherever there was 10 feet or more of solid rock above the spring line of the sewer arch. This was the thinnest type of sewer lining required because of the thickness of the overlying rock and required the least amount both of excavating and concrete. It was the cheapest to the city. The A type of concrete lining required a uniform thickness of 12 inches of concrete above the spring of the arch and was to be used whenever there was 5 feet or less of solid rock formation above the spring line of the arch. This was the thickest type of sewer lining required and the most expensive to the city. The B or middle type of concrete lining was to be used where the overlying rock was between 5 and 10 feet thick and was from 6 to 12 inches in thickness and this cost more than the C type and less than the A type.
The contract was on what is termed a unit basis--so much for each lineal foot complete as fixed by the contractor's bid based on the size of the tunnel and the type or thickness of the concrete lining, allowances being made by the contract for certain extras and changes in the construction. Thus there was known to be approximately 6000 feet of tunnel sewer, 4000 feet of 7-foot diameter and 2000 feet of 5-foot diameter, and in estimating the cost and in bidding on the job there were two diameter dimensions and three types of concrete lining for each, so that 7A sewer meant 7 feet in diameter and the type of lining designated as A type, l2 inches of concrete above the arch, and 5C or 7C meant a sewer of that diameter with 6 inches of concrete lining all around. As the contractor fixed his own price on each unit of sewer, it was supposed to make no difference to him which type the city demanded or used at the price bid. The city would naturally demand and use the C type as being the cheaper unless the contract required it to use the higher A or B type for the work it wanted.
The contract was let on the plans and specifications prepared by the defendant city and its engineer and on an estimate based thereon. The contract price could not exceed the total of this estimate and bidders took notice of this. The city engineer's estimate of the cost was approximately $ 305,000.00. The plaintiff's bid was 301,800.72 based on this estimate. Other bids were between these amounts.
There is no difference between the parties as to the open cut work but only as to the tunnel work. Nor is there any difference as to the lineal feet of sewer, either that of 7 feet in diameter or 5 feet in diameter. Nor is there any difference as to the amount of 5A type of sewer. The difference grows out of plaintiff's claim that 2865.8 lineal feet of tunnel sewer was constructed by defendant and paid for as C type, having a supporting overhead of 10 feet or more of solid rock, when it was in fact and should have been classed and paid for as B type of sewer. The contract price based on plaintiff's bid is as follows:
26.45
The estimate of the city engineer which became the basis of the bidders for doing this work specified the estimated amounts of work as follows:
Total
of 5 ft. tunnel
When the work was completed no objection was made to the quality of the work and it was accepted by the city as being in compliance with the contact. The city engineer, as the contract provides, made what is termed as the final estimate of the work done under the contract, which, among other items not questioned, contained the following amounts:
26.45
52,759.02
Total
cost
of
tunnel
It will thus be seen that on the final measurements and classifications, whereas the original estimate on which plaintiff bid gave only 200 lineal feet of 7-foot Type A tunnel sewer, plaintiff was allowed and paid of 766 lineal feet. This, as we have said, was the highest price sewer as under the specifications it required a larger amount of excavation and concrete lining. Also there was a larger amount of 7 B sewer than estimated and a corresponding less amount of Type C sewer (the cheapest type) than was estimated. These changes were in the plaintiff's favor and largely account for the fact that plaintiff was actually allowed and paid a substantial amount, about $ 20,000.00 more than its bid. Plaintiff insists, however, that this work actually cost it near $ 75,000.00 more than it was actually paid therefor. To be more specific, the plaintiff by the first count of its petition claims that it actually constructed 2865.8 lineal feet of 7-foot sewer Type B, or the equivalent thereof, for which it should have been paid at the contract price of $ 64.00 per lineal foot, and was actually paid only $ 45.00 per lineal foot, the price of C Type of 7-foot sewer, and that is constructed 1994.67 lineal feet of 5-foot Type B tunnel sewer, or its equivalent, for which it should have been paid at the contract price of $ 33.85 per lineal foot, and was paid only at the rate of $ 26.45 per lineal foot, the price of C type of 5-foot sewer. Plaintiff sues in the first count for the difference of $ 69,210.75 as being yet due and unpaid.
There was a jury trial resulting in a verdict for defendant. The court granted plaintiff a new trial on its motion, specifying that the court had given erroneous instructions to the jury on defendant's behalf and that the verdict was against the weight of the evidence. The defendant has appealed from this order granting plaintiff a new trial. Disregarding the grounds specified by the court for granting a new trial, the defendant as appellant presents the case here on the proposition that there is no evidence on which a verdict for plaintiff can be upheld and that under the pleadings and evidence the court should have directed a verdict for defendant. If this be correct, then a new trial should not have been granted, regardless of any error in defendant's instructions, and there was no evidence for plaintiff to be weighed. We discuss the case from this standpoint.
The petition is long and complicated....
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