Wilson v. Salt Lake City

• Decision Date: 13 July 1918
• Docket Number: 3135
• Court: Utah Supreme Court
• Parties: WILSON v. SALT LAKE CITY

174 P. 847

52 Utah 506

WILSON v. SALT LAKE CITY

No. 3135

Supreme Court of Utah

July 13, 1918

On Appeal for Rehearing August 22, 1918.

Appeal from the District Court of Salt Lake County, Third District Hon. George G. Armstrong, Judge.

Action by R. E. Wilson against Salt Lake City, a municipal corporation.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

W. H Folland, City Atty., and H. H. Smith and W. W. Little Asst City Attys., for appellant.

Wm. McCrea and P. L. Williams for respondent.

CORFMAN, J. FRICK, C. J., and McCARTY, THURMAN, and GIDEON, JJ., concur.

OPINION

CORFMAN, J.

The plaintiff commenced an action to recover from the defendant certain amounts alleged to be due and owing him for extra labor and materials furnished in the construction and completion of a reservoir for the defendant. The reservoir was designed for the purpose of supplying the inhabitants of Salt Lake City with water.

A written contract had been entered into between the parties on October 5, 1914, and the construction work was commenced by plaintiff on or about October 15, 1914, and thereafter continuously prosecuted until on or about December 20 of the same year, when owing to weather conditions, work was suspended until the early spring months of 1915, when it was again resumed and continued until the completion of the reservoir, September 28, 1915.

Under the contract entered into between the parties the plaintiff was to do all the work and furnish all the materials (computed on approximate quantities) necessary to construct the reservoir in a proper and workmanlike manner according to the plans and specifications furnished by the defendant city. Payments were made by the defendant (hereinafter for convenience referred to as the city), based on partial estimates as the work progressed, until the total sum of $ 40,451.53 had been paid to the plaintiff by the city on the contract, which sum was all the city was willing to concede that the plaintiff was entitled to for the work and labor furnished for the completed reservoir. The plaintiff claimed he had not been fully paid and after presenting his claim in due form for $ 16,517.47 over and above the amount paid by the city, and the city having rejected his claim, brought suit therefor in the district court for Salt Lake County, upon which he obtained, after a trial to the court without a jury, judgment against the city for $ 12,775.57, with interest and costs. From this judgment the city appeals.

The complaint sets forth three separate causes of action. The first cause of action involves the labor and material furnished by the plaintiff under the contract for the construction of the reservoir. While the evidence adduced by the respective parties is conflicting as to the amount of labor and material furnished, the trial court found for the plaintiff, and on this cause of action rendered a judgment against the city upon the several items alleged to be due the plaintiff, totaling the sum of $ 4,448.24. We find there is substantial evidence in support of all the findings with respect to the plaintiff's first cause of action, and therefore this court has not the power to and will not disturb the same. Goan v. Ogden, L. & C. R. Co., 51 Utah 285, 169 P. 949.

The second cause of action involves items in the furnishing of labor and material by plaintiff for the completion of the reservoir, alleged not to be within the terms of, nor contemplated by the parties under, the contract. The plaintiff alleged that the city engineer improperly and unnecessarily required him, when the work was suspended in 1914, to put earth on the slopes of the excavation and embankment of the reservoir to protect them during the winter season and until the work of construction might be resumed, in 1915, for which plaintiff claimed $ 8,135.52 after giving a credit of $ 650.16 paid by the city; a claim for removing dirt, in the sum of $ 40, that was disallowed by the trial court; a claim for $ 48 extra labor occasioned by an error on the part of the city in setting grade stakes, and for $ 25 the price of a hand rail. The last two items are confessed by the city on this appeal. The trial court again found the issues in favor of the plaintiff, and rendered judgment against the city on the several items allowed, the sum total being $ 8,208.53. As before, we find substantial evidence in the record to sustain the findings of the trial court both as to the amount of labor furnished and that the price charged therefor was reasonable.

The plaintiff testified that the charge made therefor against the city was but the actual cost to him of the labor performed plus 15 per cent. for engineering and reasonable profit. While there is some conflict in the testimony as to the amount of extra labor performed in the cleaning of the slopes of the reservoir we think the great weight of the evidence supports the plaintiff's contention and the finding made by the trial court, both as to the amount of extra labor and reasonableness of the charge made therefor.

However, it is contended by the city that, conceding the work now under consideration to be extra, the cleaning of the slopes of the reservoir comes within the contract entered into between the parties as to the price, and should be paid for at the contract price of thirty-five cents per cubic yard under certain provisions of the contract which read:

"The prices named in the proposal attached hereto are for the completed work, and include the furnishing of all materials, and all labor, tools, and appliances, and all expenses, direct or indirect, connected with the proper execution of the work, in accordance with the plans, profiles, and specifications for the work, and of maintaining the same until it is accepted by the board of commissioners. (Italics ours.)

"Excavating shall include the work of removing all earth, stone, loose rock, clay, shale, cement, hardpan, boulders, and all other materials necessary to be removed in excavating for the reservoir, pipes, etc. (Italics ours.)

"The contractor shall do such extra work in connection with the work herein contracted to be done as the city engineer may direct, and the price thereof shall be according to the schedule of prices in this contract, except in so far as it shall be expressly stated on the face of the order that force accounts will be allowed. No allowance for extra work of any kind shall be made unless the contractor shall have been furnished with an extra order authorizing such work, signed by the city engineer and approved by the commissioner of streets and public improvements.

"On or before the tenth day succeeding the completion of the extra work authorized by an extra work order, the contractor shall present to the city engineer the original extra work order, on the back of which shall be a full and complete itemized statement of such extra work, etc., together with date of the completion of the work mentioned therein. * * * No payment shall be allowed for any extra work for which the contractor fails to present the extra work order hereinbefore mentioned."

There are other provisions, not necessary to here set forth, contained in the instructions to bidders, the proposal and the specifications, all of which are embodied within and made a part of the contract, to the same effect, namely, that the work contemplated under the contract is to be confined to and done "in accordance with the plans, profiles, and specifications for the work." (Italics ours.)

The plaintiff contends, and throughout the trial in the district court prosecuted his case on the theory, that the labor of extra excavation and removal of earth from the slopes of the reservoir was improper, unnecessary, and not at all contemplated under the contract. This contention, directly opposed to that of the city, finds much support in the testimony, and the trial court found:

"That at the time of undertaking said work the plaintiff procured the services of a competent engineer to advise and direct the prosecution of said work, and that the said engineer devised a plan, which the plaintiff adopted, for the construction of said embankment, which was a practicable plan, and, if the plaintiff had been permitted to pursue it, * * * a very small quantity of material would have been required to remove in dressing down said slopes to the true line. * * * That the defendant, by its engineer and his assistants, interfered with the said construction as it was being prosecuted, notwithstanding plaintiff's protests, * * * and required the plaintiff to dump material to a large and excessive and unnecessary amount within the true lines of the finished slopes of the embankment. * * * That the said interference * * * was wholly unwarranted and resulted in great additional cost and damage to the plaintiff in removing the said excessive material. * * * That in prosecuting said work of removing said material and bringing the said slopes to the true line * * * incurred a cost to the plaintiff of $ 7,724.54, exclusive of the cost of any original excavation in completing said reservoir, carried on in connection with the removal of said excessive material, and exclusive of the cost that the plaintiff would have incurred in cleaning down and bringing the said slopes to the true line, and which he would have been required to have done to complete the said reservoir, if he had been permitted to have prosecuted said plan adopted by him and which was devised by his said engineer."

One of the plaintiff's witnesses, a Mr. Bigler, who was employed on the work by plaintiff, and who for twenty years had followed the occupation of general construction in railroad building, canal and street work, and who was experienced in the building of embankments for...