United Construction Co. v. St. Louis

• Decision Date: 14 March 1934
• Docket Number: No. 31174.,31174.
• Citation: 69 S.W.2d 639
• Parties: UNITED CONSTRUCTION COMPANY v. CITY OF ST. Louis, Appellant.
• Court: Missouri Supreme Court

69 S.W.2d 639

UNITED CONSTRUCTION COMPANY v. CITY OF ST. Louis, Appellant.

No. 31174.

Supreme Court of Missouri, Division No. 1.

March 14, 1934.

Appeal from Circuit Court of City of St. Louis. — Hon. M. Hartmann, Judge.

REVERSED AND REMANDED (with directions).

Charles M. Hay and Oliver Senti for appellant.

(1) The plaintiff is not entitled to recover for the first item sued on in the first count because the contract provides that the engineer shall designate in advance the type of excavation, and a heavier type can only be installed when test holes driven in the roof show that the thickness of the overhead rock requires it. (a) The plaintiff is not entitled to recover on the second item sued on in the first count because the contract provides that extra concrete shall be paid for on account of mud seams encountered around the tunnel area only when the city engineer orders them removed outside of the regular tunnel lines and the space filled with concrete. (b) The plaintiff is not entitled to recover for improper classification of the tunnel or for extra concrete because of any verbal promise made by the city engineer. Mullins v. Kansas City, 268 Mo. 444; Burke v. Kansas City, 34 Mo. App. 570; Leather v. Springfield, 65 Mo. 504; Wilson v. St. Joseph, 125 Mo. App. 460. (c) The President of the Board of Public Service was authorized to determine how the tunnel should be classified and how much extra concrete the company should be allowed. Universal Const. Co. v. St. Louis, 284 Mo. 89. (d) Six months after this suit was filed the city paid the full amount due under the final estimate, for which it received the company's receipt for payment of the account in full, and the city was thereby relieved of all liability under the contract. McCormick v. St. Louis, 166 Mo. 315. (e) A recital in a contract of what the borings indicate, coupled with a statement that while the recital is believed to be true, it shall not be the basis of any claim if other material is encountered, is not a representation as to what material will be encountered. Bates & Rogers Const. Co. v. United States, 56 C.C.R. 49. (2) The contract required the company to fire its shots at a time which would cause the least annoyance to residents in the vicinity, and the requirement that it refrain from blasting from eleven P.M. to six A.M., was fully authorized. (3) The order that no rock should be crushed at the site of the work was made when the job was begun and was acquiesced in by the company, and no claim for an allowance on account of loss occasioned thereby was presented until after the work was finished. (4) Where there is no evidence to support a verdict for the plaintiff the act of the trial court in setting aside a verdict for the defendant should be reversed. Lyons v. Corder, 253 Mo. 561. (5) Where the verdict is manifestly for the right party, and a different result could not have been reached by the jury under the law, the verdict should not be disturbed on account of an erroneous instruction. Moloney v. Boatmen's Bank, 288 Mo. 458.

Case, Voyles & Stemmler and Earl M. Pirkey for respondent.

(1) Where a city contracts that directions of its officers shall be followed then the city cannot deny the authority of such officers to resist payment for the work done. Steffen v. St. Louis, 135 Mo. 44. (2) "It is the policy of the law in this State to give security and protection to those who expend labor or supply material in making improvements for the benefit of private persons." St. Louis to use v. Von Phul, 133 Mo. 565. (3) Where a contract is susceptible of two constructions, the one working an injustice, and the other consistent with the rights of both parties, the latter should be adopted. Railroad Co. v. Provolt, 16 L.R.A. (N.S.) 587, 42 Colo. 103. (4) In seeking the intent, the fact that the construction contended for would make the contract unreasonable and place one of the parties at the mercy of the other, may properly be taken into consideration. Sanford v. Brown Bros. Co., 50 L.R.A. (N.S.) 778, 208 N.Y. 90; First Natl. Bank v. Stover, L.R.A. 1916D, 1280, 21 N.M. 453. (5) Construction of any instrument ought to be broad enough to allow it to operate fairly and justly under all the conditions to which it may apply. Campbell v. Lynch, L.R.A. 1918B, 1070, 81 W. Va. 374. (6) A check or other payment for an amount conceded to be due and tendered as payment in full does not constitute an accord and satisfaction because there is no consideration to support the accord. State ex rel. Moss v. Hamilton, 260 S.W. 466; Roland v. Gassman, 41 S.W. (2d) 198; Vaughn v. Coneau, 4 S.W. (2d) 496; Pollman Coal Co. v. St. Louis, 145 Mo. 656; Ellis v. Mansfield, 256 S.W. 165; Wetmore v. Crouch, 150 Mo. 683; Barrett v. Kern, 141 Mo. App. 25. (7) "It cannot be said that there was a fair and well understood compromise of any and all demands that might arise under these contracts, and without that, there is no valid accord and satisfaction. Dry Goods Co. v. Goss, 65 Mo. App. 61. The propositions that an accord and satisfaction to be binding must be mutually agreed to and accepted as accord and satisfaction, is elementary. Unless paid, this thousand dollars was unquestionably due and the payment of a smaller sum was not a satisfaction of it — even if accepted by plaintiff. Pollman Coal Co. v. St. Louis, 145 Mo. 656; Wetmore v. Crouch, 150 Mo. 683; Winter v. K.C. Cable Ry. Co., 160 Mo. 178; McCormick v. St. Louis, 166 Mo. 345. Therefore the conclusion of the trial judge, that accord and satisfaction has not been proven, is binding upon us there being evidence to support it." (8) "Solid Rock" means solid rock. Fruin v. Crystal Ry. Co., 89 Mo. 403. (9) Provisions which provide that all loss or damage arising from the nature of the work, shall be done and sustained by the contractor, are invalid as tending to increase the cost of the work. Donnellv on Public Contracts, sec. 153; Blochman v. Spreckels, 135 Cal. 662; Inge v. Bd. of Pub. Wks., 135 Ala. 187; Stansburv v. Poindexter. 154 Cal. 709; Citv v. Marysville, 155 Cal. 419. (10) There being nothing to the contrary in the language, it is competent for the parties by mutual consent to interpret for themselves, in which event it is the duty of the court to enforce the contract according to the interpretation put upon it and practiced by both parties. Birmingham Water Works Co. v. Hernandez, L.R.A. 1916E, 258, 196 Ala. 438; Snyder v. Hamilton Natl. Bank, L.R.A. 1918F, 807; Vincennes v. Citizens Gas Light & C. Co., 16 L.R.A. 485, 132 Ind. 114; Pittsburg Vitrified Brick Co. v. Bailey, 12 L.R.A. (N.S.) 745, 76 Kan. 42. (11) A municipal corporation which has induced a contractor to undertake public work by mutual mistake as to the amount to be done is placed in statu quo, so as to warrant cancellation of the contract, by being required to pay merely, the full value of the labor and material already furnished. Long v. Athol, 17 L.R.A. (N.S.) 96, 196 Mass. 497. (12) Positive assertions as to the nature of the work may be relied upon by the contractor without independent investigation. Hollerbach v. United States, 233 U.S. 165, 58 L. Ed. 898. (13) If the public body by their writings assures the contractor of the character or nature of conditions or materials, such will be presumed to be a matter concerning which it speaks with knowledge and may be relied upon, although general language requires independent investigation. Donnelly on Public Contracts, sec. 196; Hollerbach v. United States, 233 U.S. 165, 58 L. Ed. 898; United States v. Atlantic Dredge Co., 253 U.S. 1, 64 L. Ed. 735; United States v. Smith, 256 U.S. 11; Christel v. United States, 237 U.S. 234; United States v. Spearin, 248 U.S. 132, 63 L. Ed. 166; Bd. of Water Comm. v. Robbins, 82 Conn. 623; Sexten v. Chicago, 107 Ill. 323; Long v. Athol, 196 Mass. 497; Horgan v. New York, 160 N.Y. 516; King v. Duluth, 78 Minn. 155; Cap. City v. Des Moines, 136 Iowa, 243. (14) Contracts — for additional compensation — when enforceable. Where a contractor can justify his refusal to proceed with the contract, because he is confronted with circumstances not contemplated when the contract was made, which render its performance impossible, or unduly onerous, and the promisor induces him to proceed by a promise of additional compensation, the promise may be enforced. Blakeslee v. Water Commrs., 106 Conn. 642, 139 Atl. 106. (15) Plaintiff is entitled to show that the city misconstrued the contract in its classification or that it does not measure or classify the work according to the contract. Williams v. Railroad, 112 Mo. 493.

STURGIS, C.

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 constructing 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...