Drainage District No. 5 or Lonoke County v. Kochtitzky , 146 Ark. 494 ( 1920 )

McCulloch, C. J.

Appellant is, as its name implies, a drainage district organized under general statutes for the purpose of constructing certain drains or ditches in Lonoke County, and a contract was duly entered into'with appellee to construct the improvement. It consisted of an extensive system of drains in a large area in Lonoke County. After the completion of the improvement appellee instituted this action to recover a sum of money alleged to be due and unpaid on a part of the construction work.

The contract to do the work was let to appellee on the yardage price, that is to say, at a price per cubic yard for the dirt removed in constructing the ditches, which varied in size from sixteen to forty feet at the bottom. There was a main ditch and a number of laterals designated on the plans and specifications by letters of the alphabet. The present controversy relates to a change in lateral B, which, according to the original plans and specifications, was to be twenty feet in width at the bottom. During" the progress of the work the engineer of the district changed the plans so as to provide for a ditch of only sixteen feet in width along lateral B. Authority to make this change is claimed on behalf of appellant under a clause in the contract which reads as follows:

“The right is reserved by the board to change the form of the ditch, if the engineer shall so decide, to accommodate any machine which it is desired to be used on the job, provided no change is made which would lessen the efficiency of the ditches.”

The contention of appellee, which forms the basis of this suit, is that his machinery in operation at the time this change was made was adapted to the construction of ditches not less than twenty feet in width at the bottom, and that there was no authority on the part of the engineer or the board of commissioners of the district to make the change under the clause of the contract quoted above. Appellee alleged in his complaint, and introduced pronf which tended to show, that at the time this change was made by the engineer the construction of the ditch along lateral B was then in process, and that it was expensive to change his equipment so as to provide dredging machinery which would operate in á 16-foot channel, and that he was therefore compelled, notwithstanding the attempted change in the contract, to continue with the construction of a 20-foot ditch according to the minimum capacity of his machine. The excess yardage of dirt taken from the 20-foot ditch over and above the 16-foot ditch was approximately 13,000 cubic feet, and appellee sues for the price on this amount for which he has received no compensation. Suit was instituted in the chancery court, and was tried in that court and resulted in a decree in appellee’s favor awarding him compensation at the contract price for the removal of 11,500 cubic feet of dirt, amounting to the sum of $1,115.50.

Appellee moved to transfer the cause to the circuit court, but this was overruled, and it is contended now that the chancellor was without jurisdiction and should have transferred the cause to the circuit court. The complaint contains appropriate allegations to the effect that the limited amount of funds of the district was deposited in a certain bank, that appellee has a lien on said funds and that the commissioners were about to expend the sum in payment of other obligations of the district and the prayer of the complaint was that the board of commissioners be restrained from paying out said funds and that a lien be declared in appellee’s favor for the amount of his debt. Under a recent decision of the court upon similar state of facts, this was sufficient to give the chancery court jurisdiction. Bayou Meto Drainage Dist. v. Chapline, 143 Ark. 446.

It is also contended that the court erred in its finding as to the material facts of the case. The chancellor heard the cause on the testimony of the appellee and of the engineer of the district, who both testified with the plans and specifications and a map of the district before them. There are slight conflicts in the testimony of the two witnesses, but many of the material facts are undisputed. The contract contemplated that the construction work should be done by dredge boats and the contract called for two of these boats to be furnished by appellee. The ditches were, as before stated, of various widths, and the testimony showed that appellee provided two boats-one for use in constructing the extra width ditches and the other in constructing the narrower ditches. The minimum capacity of the smaller boat of the two was, as before stated, a 20-foot ditch and some of the lateral ditches were to be constructed only sixteen feet wide, but appellee testified that he proceeded to construct the ditches twenty feet wide according to the minimum capacity of his dredge boat, and only claimed compensation for the amount named in the contract.

There were certain changes made in the contract with appellee’s consent, or rather without any objection on his part, but his testimony is sufficient to establish the fact that he made objections to the change in regard to lateral B. The contract is plain and unambiguous with respect to the power to change the contract, and under the facts, as established by the testimony of appellee, there was no authority to change the plans as to the width of lateral B, for the reason that such a change could not be accommodated to the capacity of the machine which appellant had provided to do the work. The court was correct, therefore, in finding that the facts with respect to the size of the boat were such that appellant had no authority under the contract to change the plans and that appellee was entitled to compensation for the construction of the ditch according to the original plans. Appellee had no other means of complying with the contract according to the proof adduced, except by using the boat which had been provided for that purpose, and it would have cost more to furnish the additional equipment than the price of the excess yardage would amount to. Appellee was required by the exigencies of the situation to continue the performance of the contract, and, since he was thus compelled by those circumstances to make the ditch of the width specified in the original contract, he is entitled to compensation on that basis, notwithstanding the fact that the engineer changed the plans from a 20-foot ditch to a 16-foot ditch.

It is argued that appellee is not entitled to this compensation for the reason that certain changes in the construction of the ditches were made for the benefit of appellee, -and that he is more than compensated for the excess yardage in the construction of lateral B by an increase of the amount of excavation caused by changes in other parts of the improvement. The testimony does not show that the various changes were made at the same time or were dependent upon each other. Those that appellee consented to, or rather acquiesced in, were made independently of the change in the width of the ditch along lateral B, and the fact that appellee consented to the other changes does not afford grounds for denying him the compensation which he is entitled to under the original contract. In other words, each of the changes in the contract must stand alone, and, since appellee did not consent to the change of the plans in regard to lateral B and was forced under the circumstances to dig tlhe ditch according to the original plans, he is entitled to that compensation, notwithstanding the fact that the other changes might have rendered it less burdensome to him. It is not within the province of the court to balance up the benefits and detriments by reason of the various changes which were made in the contract independently of each other. Appellee testified that none of the changes were made at his suggestion or for his benefit, but that he merely acquiesced in certain changes against which he did not care to protest. There is testimony to the effect that the grade line of lateral B was changed so that it increased appellee’s compensation which it is contended should reduce to that extent the amount of the price of the extra yardage. There is, however, no substantial dispute as to the amount of excess yardage for which the chancellor allowed compensation, and, that being true, .appellee is entitled to this regardless of any other changes in the contract either to his detriment or to his benefit.

The contract contains the following clause with respect to the power of the engineer:

“It is mutually covenanted and agreed by and between the said parties hereto that, to- prevent disputes or misunderstandings between them in relation- to the stipulations and provisions contained in this agreement, or as to the true intent and meaning thereof, and of the plans and specifications hereunto attached, and of the other plans pertaining thereto, or as to the performance of said contract by either of said parties and for the speedy settlement of such -disputes as may occur, the engineer personally, who may be such at the time shall be, and he is hereby made, constituted and appointed sole arbitrator to finally decide all such questions and matters. ’ ’

It is contended that this clause of the contract gave the engineer the authority to interpret the contract and to decide all questions thereunder which would be conclusive upon the parties, and that the decision -of the engineer has been against appellee’s contention in regard to his price for the excess yardage. The contract is plain and unambiguous concerning the power to change the plans, and, -as before stated, the testimony clearly establishes the fact that the change with respect to lateral B did not conform to the capacity of the equipment then in operation. The engineer had the authority to settle disputed questions of fact arising under the contract or to interpret ambiguities in the contract which were dependent upon issues of fact, but he was not clothed with authority to change the contract except in the particulars mentioned, and therefore could not change it by interpretations. The rights of the parties were fixed by the contract, and not by the decisions of the engineer. Williams v. Carden’s Bottom Levee List., 100 Ark. 166. There is a distinction between the power of the engineer with respect to interpretation of the plans and specifications and as to the contract itself. The former is supposed to be the work of the engineer, and it is proper in case of dispute to refer such interpretation to him, but, as before stated, the rights of the parties are fixed by the contract itself, and it is a question for the courts, and not for the engineer, to determine what those rights are, except to the extent that the parties may leave to the engineer the settlement of questions of fact relating to the quantity, quality or manner of the construction of the work to be done under the contract.

Lastly, it is insisted that there was a final settlement between the parties, which was accepted by appellee, and is binding on him. The testimony discloses the fact that when the parties came together for the final settlement the compensation for excess yardage in the construction of lateral B was denied by the board of commissioners, and a check was drawn for the amount of the balance due to appellee exclusive of the price of this yardage, and that he received the check into his possession and kept it about a half an hour, but returned to the meeting of the commissioners, and an agreement was made that the acceptance and collection of the check should not bar his right to assert claim for the price of the excess yardage. This agreement between the parties prevented the final settlement from becoming’ binding on appellee, so as to bar him from asserting a claim for the additional amount.

The decree is correct, and the same is affirmed.