Webb-Boone Paving Co. v. State Highway Comm., No. 38297.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Bohling
• Citation: 173 S.W.2d 580
• Parties: WEBB-BOONE PAVING COMPANY, a Corporation, v. STATE HIGHWAY COMMISSION OF MISSOURI, Appellant, ANTHONY McNAMEE and OLIVER McNAMEE, Partners Doing Business under the Firm Name of McNAMEE BROTHERS.
• Decision Date: 07 June 1943
• Docket Number: No. 38297.

173 S.W.2d 580 WEBB-BOONE PAVING COMPANY, a Corporation,
v.
STATE HIGHWAY COMMISSION OF MISSOURI, Appellant, ANTHONY McNAMEE and OLIVER McNAMEE, Partners Doing Business under the Firm Name of McNAMEE BROTHERS. No. 38297. Supreme Court of Missouri. Division Two, June 7, 1943. Motion to Clarify and Modify Opinion Sustained in Part and Opinion Modified, October 4, 1943.

[173 S.W.2d 581]

Appeal from Circuit Court of St. Louis County. — Hon. John A. Witthaus, Judge.

REVERSED AND REMANDED (with directions).

Raymond G. Barnett and Ralph M. Eubanks for appellant.

(1) Where, as here, the pleadings show a right has matured or an obligation has been incurred under existing legal or equitable procedure, action for relief by declaratory judgment will not lie. Our code contemplates the final determination of disputes in one action. Secs. 1131, 8764, 8767, R.S. 1939; Hillside Securities Co. v. Minter, 254 S.W. 188; Miller v. Alsbaugh, 2 S.W. (2d) 208; Sandy Hites Co. v. State Highway Comm., 149 S.W. (2d) 828; Gillioz v. Commission, 153 S.W. (2d) 18; 1 C.J.S., sec. 18d (8), pp. 1027, 1028, sec. 18d (8), pp. 1028, 1029; Aetna Cas. & Surety Co. v. Quarles, 92 Fed. (2d) 321; Fritz v. Superior, etc., 63 Pac. (2d) 872; Sheldon v. Powell, 128 So. 258; Miller v. Siden, 242 N.W. 823; Ladner v. Siegel, 144 Atl. 274; Wash. & Detroit Theatre Co. v. Moore, 68 A.L.R. 105; Brindley v. Meara, 198 N.E. 301; Zenie Bros. v. Miskend, 10 Fed. Supp. 779; Liberty Mutual Ins. Co. v. Jones, 130 S.W. (2d) 945; 1 C.J.S., sec. 18d (3), p. 1022. (2) The contractor cannot recover the extra expense incurred in excavating hidden and unknown subsurface obstructions where there is no showing of a warranty, express or implied, and no showing of positive representations that such obstructions would not be encountered. Simpson v. United States, 172 U.S. 372; United States v. Spearin, 248 U.S. 132; Maryland Cas. Co. v. Board of Water Commissioners, 43 Fed. (2d) 418; Jonesboro Compress Co. v. Mente & Co., 72 Fed. (2d) 3; Day v. United States, 245 U.S. 159; H.W. Golden & Son v. Town of Marble Head, 68 Fed. (2d) 875; Sandy Hites v. State Highway Comm., 149 S.W. (2d) 828; Gillioz v. State Highway Comm., 153 S.W. (2d) 18.

Igoe, Carroll, Keefe & Coburn, Ragland, Otto & Potter and James E. Carroll for respondent.

(1) The act is remedial and its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations and is to be liberally construed and administered. Laws 1935, p. 218; Borchard, Declaratory Judgments (1934 Ed.); Town Board of Town of Greece v. Murray, 223 N.Y. Supp. 606, 130 Misc. 55; Alfred E. Joy, Inc., v. New Amsterdam Cas. Co., 98 Conn. 794, 120 Atl. 684; Johnson v. Mortenson, 110 Conn. 221, 147 Atl. 705; Holly Sugar Corp. v. Fritzler, 42 Wyo. 446, 296 Pac. 206; Lawrence v. American Sur. Co., 263 Mich. 586, 249 N.W. 3. (2) Where plans, specifications and proposal (or bid) sheets and where the means and method of excavation are approved by the agent of the owner (Highway Commission) lead a contractor to reasonably believe that the conditions indicated by plans, specifications and proposal (or bid) sheets may be relied upon in making his bid, he will be entitled to compensation for extra work or expense made necessary by conditions encountered being other than as so represented. United States v. Gibbons, 109 U.S. 200, 3 S. Ct. 117; United States v. Utah, N. & C. Stage Co., 199 U.S. 414, 26 S. Ct. 69; Hollerbach v. United States, 233 U.S. 165, 34 S. Ct. 553; Christie v. United States, 237 U.S. 234, 35 S. Ct. 565; United States v. Atlantic Dredging Co., 253 U.S. 1, 43 S. Ct. 423; United States v. Smith, 256 U.S. 11, 41 S. Ct. 413; Sheridan-Kirk Contracting Co. v. United States, 53 Ct. Cl. (Fed.) 82; Dunbar & S. Dredging Co. v. United States, Ct. Cl. 567; Pitt Construction Co. v. Alliance, 12 Fed. 28; Horgan v. New York, 55 N.E. 204; Langly v. Rouss, 77 N.E. 1168; Faber v. New York, 118 N.E. 609; Foundation Co. v. State, 135 N.E. 236; McGovern v. New York, 139 N.E. 266, reargument denied 142 N.E. 262; Manly v. Oklahoma City, 150 Okla. 77, 300 Pac. 642. (3) The words of a contract will be given a reasonable construction and the court will likewise endeavor to give a construction most equitable to the parties and one which will not give one of them an unfair or unreasonable advantage. C.J.S., "Contracts," p. 739, sec. 319, and cases cited thereunder; Miller v. Bowen Coal & Mining Co., 40 S.W. (2d) 485; Richardson v. Western Oil, Coal & Inv. Co., 3 Fed. (2d) 403. (4) "Structure" is defined to be that which is built or constructed; in the widest sense, any production or piece of work artificially built up or composed of parts and joined together in some definite manner; any construction. The term, when applied to a material thing made by human labor, means something composed of parts or portions which have been put together by human exertion. 40 Words & Phrases, p. 323; Favro v. State, 46 S.W. 932; Barr Lbr. Co. v. Perkins, 295 Pac. 552; Jefferson Davis County v. Riley, 130 So. 283; Brown v. City of Decatur, 188 Ill. App. 147; Detroit Trust Co. v. Austin, 289 N.W. 239; Flanigan v. T.W. Carlin Const. Co., 118 N.Y.S. 593; Armenti v. Brooklyn Gas Co., 142 N.Y.S. 420; Rookstool v. Cudahy Packing Co., 158 N.W. 440. (5) "Grading" includes cutting as well as filling. Technically, it is the reducing of the earth's structure to a given line fixed as the grade, and may involve filling or excavating, or both, as shall be necessary to accomplish that object. 18 Words & Phrases, p. 604; Rhine v. City of Dubuque, 83 N.W. 1073; Smith v. Washington City, 61 U.S. 135, 15 L. Ed. 858; Musto-Keenan Co. v. City of Los Angeles, 34 Pac. (2d) 506; Louisville & N.R. Co. v. State, 193 S.W. 113. (6) Earth excavation. Shepard v. St. Charles Western Plank Road Co., 28 Mo. 373; Blair v. Corby, 37 Mo. 313; Davis v. Commission of Sewerage, etc., 13 Fed. Supp. 672.

BOHLING, C.

The Webb-Boone Paving Company, a corporation, holding the primary contract, instituted this declaratory judgment action against the State Highway Commission of Missouri (hereinafter sometimes designated Commission) and Anthony McNamee and Oliver McNamee, partners engaged in business under the name of McNamee Brothers, the subcontractor, for a judgment declaring the rights of said subcontractor, if any, against plaintiff and of plaintiff, if any, against the Commission. Ch. 6, Art. 14, Secs. 1126-1140, R.S. 1939. The amount involved is asserted to be $9,663.06. The judgment declared the rights in favor of plaintiff and defendants McNamee Brothers and adverse to the State Highway Commission. The Commission appealed. McNamee Brothers seek to dismiss the appeal. The Commission questions plaintiff's right to a declaratory judgment under the pleadings and also contends the declaration, on the merits, should have been in its favor.

The Webb-Boone Paving Company and the State Highway Commission, on or about November 16, 1934, entered into a contract for certain highway construction work, known as project N R M — 475 C2, Route 40, St. Louis City. Plaintiff subcontracted the grading and filling to McNamee Brothers. When, according to the petition (and the record), McNamee Brothers entered upon actual construction work they soon first discovered, a short distance below the surface of the ground, materials, objects and obstructions not shown on the proposal form, plans and specifications, to wit, poles or piling and upright timbers with many steel cables, supports, and other appurtenances attached thereto, of an abandoned railway trestle, and bases for trolley poles and car track concrete foundations. This hindered, delayed, and interfered with the McNamee Brothers' performance of their contract and resulted in their expending $9,663.06 (alleged to be a reasonable amount), in completing the work over and above that which they would have had to expend had not the aforesaid subsurface structures been encounted. McNamee Brothers made demand upon the Commission and plaintiff for payment. The Commission refused payment. Plaintiff thereupon instituted this action for a declaratory judgment, joining the Commission and McNamee Brothers as defendants, on the theory that if plaintiff be liable to McNamee Brothers by reason of the warranties contained in the proposal form, plans and specifications of the Commission, adopted by reference in the contract between plaintiff and said McNamee Brothers, then plaintiff was entitled to be reimbursed for any such damages by the Commission by reason of the warranties contained in the proposal form, plans and specifications of the Commission forming part of the contract between plaintiff and the Commission, and on the theory that if the Commission be liable directly to McNamee Brothers by reason of the premises aforesaid, then plaintiff should not be harassed or put to the expense of defending a suit by McNamee Brothers.

The court adjudged and declared that the State Highway Commission was liable to plaintiff and plaintiff, in turn, was liable to McNamee Brothers by reason of the premises aforesaid; and that, upon the filing of a proper petition etc., evidence be

173 S.W.2d 582

adduced to the end that reasonable compensation and profits be adjudged to McNamee Brothers. The material provisions of the judgment are set out in the foot note.^*

[1] McNamee Brothers' motion to dismiss is on the theory (a) that the Commission's appeal was premature because no final judgment had been entered, and (b) that the appeal does not involve $7,500 or any other amount. The motion is overruled; because:

(a). The title of the Missouri declaratory judgment act reads: "An act authorizing and empowering the circuit courts of this state to declare rights, status, and other legal relations, by declaratory judgments and decrees, and repealing all conflicting laws." Laws 1935, p. 218. Section 1 provides that circuit courts "shall have power...