Wilson v. County of Buchanan

• Decision Date: 10 October 1927
• Docket Number: 26237
• Citation: 298 S.W. 842,318 Mo. 64
• Parties: Marion B. Wilson v. County of Buchanan, Appellant
• Court: Missouri Supreme Court

298 S.W. 842

318 Mo. 64

Marion B. Wilson v. County of Buchanan, Appellant

No. 26237

Supreme Court of Missouri

October 10, 1927

Appeal from Buchanan Circuit Court; Hon. Samuel Wilcox Judge.

Affirmed.

DuVal Smith and C. W. Meyer for appellant.

(1) The opinion of the witness George as to the number of cubic yards of earth to be removed; also the opinion of plaintiff himself as to how much dirt he moved, and also the opinion of witness Olson to the same effect, were all improperly received in evidence: (a) Olson's opinion is a mere guess, as no computation was made by him. (b) Plaintiff's opinion rests largely on his calculation as to how much the job cost him. (c) George is not an engineer and his opinion is also a mere guess. Both he and Olson evidently relied on the estimate shown on the profile before the contract was let. Rothwell v. Dean, 60 Mo.App. 428; Pope v Ramsey, 78 Mo.App. 157; Birmingham Ins. Co. v Pulver, 126 Ill. 329, 127 Ill. 246; Cook v. Brockway, 21 Barb. 331; Vulcanite Paving Co. v. Rich, 23 A. 555. (2) Defendant's demurrer to plaintiff's evidence should have been sustained: (a) Plaintiff's evidence furnishes no data from which the jury could make any computations. (b) The mere opinion of the witness for plaintiff is not sufficient under the circumstances of this case to make a case for the jury. (c) Granting that some errors appear in the original notes of the county engineer, it is not shown that these affected the final result, or if they did, to what extent. (d) No measurements nor estimates were made by plaintiff after the work was done, and the figures and final estimate of the county engineer must under all the facts in this case be taken as conclusive. Authorities under Point 1. (3) The peremptory instruction to find for the defendant, asked at the close of all the evidence in the case, should have been given, because: (a) The evidence does not show that plaintiff was induced to accept the last payment installment on promises by defendant's officers that the matter would be investigated later. (b) Plaintiff does not claim that he discovered that errors had been made after receiving final payment, but on the contrary the evidence shows he was of the opinion he had moved more dirt than the final estimate showed when he received his last warrant. (c) The evidence shows a final settlement without fraud or gross error. (d) The evidence of plaintiff is vague and uncertain and is completely overthrown by the evidence of the defendant. In short, plaintiff's evidence is insufficient to support a verdict. Buffington v. So. Mo. Land Co., 25 Mo.App. 492; Powell v. Adams, 98 Mo. 598; Matier v. Mo. Pac. Ry., 105 Mo. 320; Putnam v. Boyer, 173 Mo.App. 394. (4) Plaintiff's Instruction 2 should not have been given for the reason that there is no evidence upon which to base it. Neither is any such issue made by the pleadings. Plaintiff makes no showing that he was induced to accept the warrant representing final payment upon any promises from the county engineer that any mistake in the final estimates would be corrected. If there were any such promises they were made after final payment. Donahoe v. Ry. Co., 83 Mo. 543; Hamilton v. Crowe, 175 Mo. 634.

Randolph & Randolph for respondent.

(1) If under the evidence there was a gross and palpable mistake, then the plaintiff is entitled to recover, whether or not there was a final settlement. Williams v. Ry. Co., 112 Mo. 493; Hunt v. Owen Bldg. & Inv. Co., 219 S.W. 141. (2) None of appellant's authorities is applicable to his contention in the case at bar. Rothwell v. Dean, 60 Mo.App. 428; Pope v. Ramsey, 78 Mo.App. 157; Smith v. Sickinger, 221 S.W. 780. (3) The evidence in this case is clear and convincing that there was a gross and palpable error on the part of the engineer Meyer. The answer of the defendant says: "Defendant further answering, says that plaintiff in performing said contract, moved not to exceed 48,130 yards of earth." That admits the moving of 15,412.2 yards more than the plaintiff was paid for. It admits an indebtedness on behalf of the county of $ 2697.13, which is more than half of the amount of the verdict. (4) The verdict of the jury was not for as much as the plaintiff was entitled to, but it may be readily seen from all of the evidence that they could very readily have arrived at that conclusion. It was up to the jury to determine what the yardage was from all of the testimony submitted. It was evident that no reliance could be placed upon the figures of H. L. Meyer, as no one of the engineers could check out with him. At the least, if the verdict is too small, the defendant is not to be heard to complain of anything in his own favor.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

This is a suit for a balance claimed by plaintiff for grading a road, under a contract with the defendant county. The petition alleges that plaintiff undertook to grade the Easton-Fisher road, in certain governmental sections, under a contract and bond given by him, in obedience to directions to be given from time to time by the county surveyor, and in accordance with written specifications made a part of the contract; and that the county agreed to pay therefor seventeen and one-half cents per cubic yard of earth moved. It is alleged that plaintiff performed and completed the work, according to the contract, and that in doing so, moved 82,000 yards of earth, which, at the price agreed, entitled him to payment in the sum of $ 14,350; that the representatives of the county measuring the work, made a gross and palpable mistake, and allowed plaintiff as for earth moved only 32,717.8 yards, or 49,282.2 yards less than the amount of earth actually moved. It is alleged that the work was accepted by the county, but that the measurements and estimates of the county's engineer were false, fraudulent and grossly incorrect and inadequate, and that there is owing to plaintiff for said work the sum of $ 8,624.35.

The answer, after a general denial, admitted the making of the contract; and next, pleaded that plaintiff "in performing said contract, moved not to exceed 48,130 yards of earth, and that he has been fully compensated therefor, and final payment made to him on said contract." The answer also pleaded the following provision of the contract. "The grading will be paid for by the cubic yard of excavation only, and the figures of the Highway Engineer on final estimate shall be taken as final." It was then alleged "that said final estimate was duly made, and payment made to plaintiff in accordance therewith, and that said final payment was accepted by the plaintiff."

The reply was a general denial.

There was a verdict for plaintiff in the sum of $ 4,312.18, which was one-half the amount sued for. Defendant appealed, and plaintiff also appealed. By mistake of the clerk, the appeals were allowed to the Kansas City Court of Appeals; and upon motion that court properly transferred the cause to this court. [Constitution, art. 7, sec. 12.] The plaintiff is not pressing the appeal taken by him, and the cause is to be considered upon the appeal of defendant.

The defendant insists that error was committed in the refusal of the court to give the peremptory instruction offered by defendant at the close of the plaintiff's case, and again at the close of the whole case. The contention of defendant is put upon two grounds: First, that the evidence for plaintiff as to the moving of any earth in excess of that allowed and paid for, is vague and indefinite, and insufficient to support the verdict, which, it is urged, was based upon conjecture; and second, that the evidence showed a final settlement with plaintiff, and final payment to him, made without fraud or gross error; and that plaintiff is bound thereby. Complaint is also made of the admission of certain testimony, and the giving and refusal of certain instructions.

The contract was made in October, 1917, and the work done thereunder was completed in July, 1918. This suit was brought in February, 1923. In August, 1918, after the completion of the work, a warrant was issued to the plaintiff for $ 1,422.75 containing a recital that it was for final payment for grading the Easton-Fisher road. Plaintiff cashed this warrant. The contentions and the evidence as to the claim of mistake, then and thereafter made by the plaintiff, will be noticed later. The determinative question in the case is whether in measuring and estimating the number of yards of earth moved, a gross mistake was made.

At the time of the making of the contract, one Ray L. Cargill was County Highway Engineer. He continued to be such until about the time, or shortly after, the work was completed, when he resigned and moved to Kansas City. He was succeeded by H. L Meyer, who had been his assistant. The final measurement or estimate was made by Meyer. Cargill testified that he was a civil engineer, and was engaged almost altogether in that sort of work from 1901 to 1918; that the profile, and an estimate of the amount of earth to be moved, were made by him or under his supervision. This was done before the surface of the road was disturbed. He said he had not seen the profile or estimate since he resigned, but his recollection was that it was approximately 80,000 cubic yards. He was asked what degree of accuracy, as to yardage, the profile should indicate. He answered: "The profiles are not attempted to be made accurate, consequently the estimate would not be accurate. We found in some instances they ran within five per cent and sometimes would go as high as twenty-five per cent, depending upon the amount of bank dirt to be moved. I should say an average of sixteen and two-thirds per cent would be about right. That would run both ways. I think I...