Wagoner v. Turpin Park Irr. Co., 3967

• Decision Date: 08 October 1971
• Docket Number: No. 3967,3967
• Citation: 489 P.2d 630
• Parties: Robert J. WAGONER, Appellant (Defendant below), A. F. Allard, (Defendant below), v. TURPIN PARK IRRIGATION CO., a corporation, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 630

489 P.2d 630

Robert J. WAGONER, Appellant (Defendant below) A. F. Allard, (Defendant below), v. TURPIN PARK IRRIGATION CO., a corporation, Appellee (Plaintiff below).

No. 3967.

Supreme Court of Wyoming.

Oct. 8, 1971.

Gordon W. Davis, of Davis & Costin, Laramie, for appellant.

Edward T. Lazear, of Loomis, Lazear, Wilson & Pickett, Cheyenne, Harold M. Johnson, Rawlins, for appellee.

Before McINTYRE, C. J., and PARKER, McEWAN, and GRAY, JJ.

Mr. Justice GRAY delivered the opinion of the court.

The within action was commenced on December 6, 1956, by the plaintiff's filing of a petition for a declaratory judgment seeking a determination of the rights of the plaintiff to terminate a contract theretofore entered into by the plaintiff with the defendant, Robert J. Wagoner, for the construction of a reservoir and related ditches in the Medicine Bow Mountain area. After some initial maneuvering the defendant answered and by way of a counterclaim asserted that he had been damaged in the sum of $49,918.58 by a breach of the contract and further asserted in eleven separately stated subparagraphs that he had performed certain specifically described work for which he had not been paid in the approximate sum of $35,886, which amount was later increased. Thereafter the district court on motion of the plaintiff struck from defendant's counterclaim the amount claimed for breach of contract, and it seems to be conceded that the action came on for trial by the district court sitting without a jury on defendant's counterclaim of work performed for which he claimed he had not been paid. The district court in its Findings of Fact and Conclusions of Law in essence concluded that plaintiff had not wrongfully terminated the contract; that there was a failure of proof by the defendant to support by substantial evidence seven of its separately stated and specifically described items of work in the approximate sum of $36,835, which would be disallowed; that three of the claims for extra cement and the laying of pipe in the sum of $926.80 was for 'extra work' approved by plaintiff and should be allowed; and that the ten percent of the estimates withheld by plaintiff in the sum of $1,737.20 should also be paid. Judgment was entered accordingly and defendant has appealed. Plaintiff, on the other hand, has not appealed and has deposited its check in court for payment of the amount found due the defendant.

Most of the circumstances underlying the litigation are not disputed. The record discloses that a group of ranchers in the area became interested in a project whereby the waters of Turpin Creek could be utilized to firm up their existing water supply. The project envisaged the construction of a reservoir and the two ditches necessary to bring the water to their lands. A corporation was formed and named the Turpin Park Irrigation Co. Application was also made to the Farmers Home Administration for a loan to construct the works and eventually a loan in the sum of $50,000 was approved by F.H.A. and its associated agencies. With the approval of F.H.A. Noah E. Wolford, then county engineer for Carbon County, Wyoming, as well as a licensed engineer, was designated and selected as the 'Engineer' for plaintiff's project and prepared the specifications.

Inasmuch as the major portion of defendant's claim and contentions is based upon the presence of so-called 'Cemented Gravel' in the ditch identified as the 'lower' ditch, it appears advisable to refer to the applicable specifications. Under the portion designated 'Earth Work' on the Medicine Bow and Turpin Creek diversion ditches two classifications were set forth. The first, 'Earth Excavation,' was defined as comprising 'all material which can be moved to the spoil bank with a 1 cubic yard power shovel.' This was bid by defendant at a unit price of forty cents per cubic yard and accepted by plaintiff. The second, 'Solid Rock,' was defined as comprising 'boulders too large to be moved to the spoil bank without blasting.' This was bid by defendant at five dollars per cubic yard and accepted by plaintiff. No other provision was made for 'Earth Excavation' and particularly for the so-called 'Cemented Gravel.' Defendant's bids were submitted on August 30, 1955, and on September 8, 1955, the plaintiff and defendant entered into a written contract which, among other things, provided that the work was to be completed within 120 days after defendant commenced work, unless extended for 'unforseeable causes beyond the control and without the fault' of the defendant. It was also provided that plaintiff could terminate defendant's right to proceed with the work, take it over and complete the contract if the defendant failed, among other things, diligently to prosecute the work to completion within the time fixed or as extended. Under date of October 17, 1956, the plaintiff by letter served notice on defendant that it was terminating the contract because of defendant's defaults, naming them, and would exercise its contract rights. This was done and the project was completed in 1957. The contract also provided that as the work progressed the engineer, Wolford, would prepare estimates of the quantities of the work performed, apply the 'unit price' where bid by the defendant, and submit the same to F.H.A. for review by its engineer. In keeping therewith some nine estimates were made, approved by the engineer for the F.H.A., and paid by plaintiff. Each estimate on the ditches was on the basis of 'Earth Excavation' or removal of 'Solid Rock.' No amount for 'Cemented Gravel' was set forth, approved, or paid as such. It was also provided that such estimates would not become final until the work was completed and accepted by Wolford and a final estimate made which was to be checked and approved by the F.H.A. engineer and the engineer of the Soil Conservation Service. That, of course, was never accomplished in strick keeping with the contract because of the termination and the further reason that Wolford in October or November 1956 had been replaced by another engineer. At about that time, however, a survey of the ditches was made by the new engineer for the purpose of determining the amount of earth and rock removed and there was testimony that the result reached was substantially the same as the amounts shown on the nine estimates.

Also, with respect to the defendant's claim for an additional allowance for removal of 'Cemented Gravel,' the record fails to show that defendant for purposes of his bid made any investigation of soil conditions that he might encounter. That he made none is borne out by his own testimony wherein he said that neither he nor the plaintiff nor any one else had knowledge of the existence of 'Cemented Gravel' in the ditch rights-of-way at the time the contract was entered into. He discovered it in digging the 'pit' for the reservoir, which was in the fall of 1955. According to him, he advised Ravenscroft, president of plaintiff, at that time that if they ran into much more of it 'They were in trouble' as it could not be removed at the 'Dirt Excavation' unit price. In working on the 'lower ditch' defendant again ran into it and from his notes testified as to the number of cubic yards of 'Cemented Gravel' claimed to have been removed at a unit cost of $2.95 per cubic yard, which he said was the reasonable value of such excavation. He admitted, however, that no agreement on the amounts had ever been reached and Ravenscroft testified that when defendant demanded more money for it he answered, 'Well maybe we will have to pay you more; I don't know' but he made no promise to defendant. In any event, although complaining, defendant continued with the work on the ditches and apparently had completed it or nearly so at the time the notice of termination was given.

The record also discloses that in early November 1955 the snow conditions in the area were such that the work could not continue and defendant with the knowledge and consent of plaintiff stopped work and on November 6, 1955, 'pulled' his equipment off the mountain. It appears from the within estimates, however, that defendant did some work on the...