Sweeney v. Jackson County , 93 Or. 96 ( 1919 )

BEAN, J.

The first question presented for consideration is in regard to the motion to quash, for the reason the suit was commenced in the wrong county. It is evident that the suit is embraced within that portion of Section 396, subdivision 3, L. O. L., which enacts that:

“In all other cases, the suit shall be commenced and tried in the county in which the defendants, or either of them, reside, or may be found at the commencement of the suit.”

The defendant bank is an institution of Multnomah County. This question therefore depends upon whether or not the bank, was a necessary or proper party defendant. If it is, then the suit was properly commenced in Multnomah County. Section 393, L. O. L., which prescribes who may be plaintiffs and defendants, provides in part that:

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. ’ ’

The record discloses that both the county and the bank claimed that the estimate of the amount due plaintiff was in fact final and was in the nature of an adjudication fixing the amount due the plaintiff from the county. The bank was the assignee of all of the interest of the plaintiff by virtue of the estimate. The bank insisted that the estimate could not be set aside to its prejudice; and the complaint prayed that notwithstanding the claim of the bank that a decree be entered fixing a new and correct estimate which should be paramount to any rights or claims of the bank under its assignment and that the bank be enjoined from asserting that the estimate was final and binding on the plaintiff. According to the claim made by the bank, it was the owner by virtue of the assignment as collateral security of the whole amount due Sweeney from plaintiff. Therefore, if this is correct, the bank would have had the right to have instituted an independent action upon the claim, and would not have been compelled to wait from April, 1915, until the present litigation is concluded. This interest of the bank in having the $35,573.56 paid to it instead of having the claim assigned to it, declared to be an equitable assignment of only a’ portion of plaintiff’s demand from the county, was wholly adverse to plaintiff’s interest. In order that the bank should not commence such an independent action, and that all questions involved between the plaintiff and the county might be completely settled, it was necessary to make the bank a party to the suit. If the plaintiff had proceeded against the county alone, he would probably have been met at the inception of the litigation by an objection that the bank, because of its assignment, was a necessary party. It is the policy of courts of equity that whenever a cause is presented^ where judgment is sought upon a controversy between the parties before the court, to have all of the parties present, whose rights are so interwoven; whenever such parties can be brought in so as not to infringe upon the rights of those who are absent by a decree which would necessarily affect their interests, or if the presence of any such party would defeat the jurisdiction, then the court will dismiss the suit: California v. Southern Pacific Co., 157 U. S. 229 (39 L. Ed. 683, 15 Sup. Ct. Rep. 591); United States v. Northern Pacific R. R. Co., 134 Fed. 715 (67 C. C. A. 269). The demand of the plaintiff was that the alleged final estimate or award be declared to be only a partial or preliminary estimate. Under these circumstances, the bank claiming the assignment of an adjudicated claim was not a mere nominal party. If upon the trial, the final estimate should be set aside or declared not to be such a final estimate, the claim of the bank then would be in the same condition as any other preliminary estimate of unsettled account. The answer of the county to the answer of the bank denied any interest in the bank to protect and denied that the plaintiff had made any assignment to the bank, or that there was due the bank any sum whatever. The provisions of the decree, in so far as the bank is concerned, established the necessity for its presence, and that it had rights which were determined according to the contentions of plaintiff. According to the decree of the trial court, the transaction between the plaintiff and the bank operated as an equitable assignment of a part of the money due plaintiff. In the case of Willard v. Bullen, 41 Or. 25 (67 Pac. 924, 68 Pac. 422), Bullen had a contract with the City of Portland to erect a bridge. He gave as collateral security, orders on the city to the Commercial National Bank, and others, some of which were “payable out of the final estimate,” and others “payable out of the next estimate or payment due under the terms of the contract.” These orders were presented to the city, but before they were paid, or a final settlement was made, suit was brought by plaintiff who claimed to be a partner of Bullen.

This court said:

“The orders in favor of the Commercial National Bank, The North Pacific Lumber Co., Kelly, Dunne & Co. and Jacobson operated as an equitable assignment of a part of the fund, and gave to these order claimants a prior right to be paid out of such fund before the general creditors.”

As to an interest acquired by an equitable assignment: See McDaniel v. Maxwell, 21 Or. 202 (27 Pac. 952, 28 Am. St. Rep. 740). The rule adopted in this state in the latter case is that an assignment of a part of an entire demand is good in equity, and operates When delivered to the payee as an equitable assignment or appropriation of the fund pro tanto, and no acceptance by the drawee is necessary: Citing 3 Pomeroy’s Equity, § 1280; Brill v. Tuttle, 81 N. Y. 454 (37 Am. Rep. 515); First National Bank v. Kimberlands, 16 W. Va. 555; Harris County v. Campbell, 68 Tex. 22 (3 S. W. 343, 2 Am. St. Rep. 467); Hutchinson v. Simon, 57 Miss. 628; James v. City of Newton, 142 Mass. 366 (8 N. E. 122, 56 Am. Rep. 692). In 4 Cyc. 103, the rule as to parties is stated as follows:

“When it appears in a proceeding in equity that the subject matter, or an interest therein, has been assigned, the assignee is a necessary party to the proceeding brought by the assignor, or against him.”

1. In the determination as to whether or not there has been a proper joinder of parties defendant, it must depend largely upon the case as stated by the plaintiff in his complaint, however it may turn out upon the merits: Rountree v. Mt. Hood R. Co. (D. C.), 228 Fed. 1010. “The motive of the plaintiff,” says the court in Chicago, Rock Island & Pacific Ry. Co. v. Schwyhart, 227 U. S. 184, 193 (57 L. Ed. 473, 33 Sup. Ct. Rep. 250, 251), “taken by itself does not affect the right to remove. He has an absolute right to enforce it whenever the reason makes him wish to assert the right.”

The county bases its claim that the bank was not a necessary party upon decisions involving facts which are dissimilar to those in the present case. In Allen v. Miller, 11 Ohio St. 374, 376, cited by it, the question was as to whether the assignors of plaintiff who claimed no interest in the controversy adverse to plaintiff were necessary parties, and whether such assignors should be joined as defendants, the court held that they need not be so joined. In Thompson v. Massie, 41 Ohio St. 307, 317, relied upon by the county, it appeared that Thompson was sued as a joint maker of a note. It was objected that bankruptcy proceedings had been instituted against Thompson before the action was brought; The court held, nevertheless, that Thompson was the proper party to the action. In Hadley v. Dunlap, 10 Ohio St. 1, 6, cited by the county, it appeared that a resident who had no interest in the controversy was joined with a nonresident and it was held that this joinder did not prevent the removal of the case to the federal court. In State ex rel. Jackson v. Bradley, 193 Mo. 33 (91 S. W. 483, 485), also cited by the county on this point, H., J. and S. prosecuted an action as attorneys at law, and J. collected the fee; H. sued J. to recover his share, and joined S. suing in the county, where S. lived. The court said:

, “The employment of Houts and Suddath, although for a contingent fee, was wholly independent of each other. H. neither has nor claims to have any rights against S., and vice versa.”

Questions of public policy, which would prevent the county being sued in any other forum than its own, are urged. That by bringing the suit in Multnomah County, the expense of the trial was excessive and burdensome. Section 45, Subd. 4, L. O. L., provides for a change of the place of a trial on motion of either party to the action when it appears:

“That the convenience of witnesses and the parties would be promoted by such change.”

There was no application for a change of the place of the trial of which we are advised, in so far as it appears at this stage of our investigation Multnomah County was a convenient forum for the witnesses and it does not appear that it increased the expenses of the parties.

2, 3. Many causes involving claims against counties in the State of Oregon have been tried in a court other than that of a defendant county: See Weiss v. Board of County Commissioners of Jackson County, 8 Or. 529, 9 Or. 470; Rice v. Wallowa County, 46 Or. 574 (81 Pac. 358); Ridings v. Marion County, 50 Or. 30 (91 Pac. 22); Bailey v. Benton County, 61 Or. 390 (111 Pac. 376, 122 Pac. 755); Buttle v. Douglas County, 87 Or. 105 (168 Pac. 1180). After the county made a special appearance and the preliminary motions' and questions were disposed of, it answered to the merits, and in any event the jurisdiction of the court over the defendant county then became complete. A party cannot fight his battle upon the merits without making a general appearance. The law will not allow a party to obtain the benefit of jurisdiction of the court if the decree is in his favor, and repudiate it when the result is adverse. As said in Sealy v. California Lumber Co., 19 Or. 94, at page 97 (24 Pac. 197, at page 198):

“He ought to do one thing or the other — either fight it out on the line of his special appearance; or, if he appear and go to trial, accept its incidents and consequences”: Belknap v. Charlton, 25 Or. 41 (34 Pac. 758); Winter v. Union Packing Co., 51 Or. 97 (93 Pac. 930); Jones v. Jones, 59 Or. 308 (117 Pac. 414).

4. We find that the United States National Bank of Portland, Oregon, had a claim, or interest in the fund in controversy in this suit adverse to the plaintiff; that the bank was a necessary party to a complete determination of the questions involved in this suit, and that the action was properly commenced in Multnomah County where the bank was situated.

The county’s demurrer to the complaint, on the ground that the matters alleged are not cognizable in equity, raises the next question. It is the position of counsel for the county that equity has no jurisdiction for the impeaching of an award, unless the contract, by the most explicit terms, makes the engineer selected by the parties the arbiter whose judgment is final, binding and conclusive upon both parties; nor unless fraud in making the award, which was participated in by the county, is alleged and proved; nor unless the error or mistake plainly appears upon the face of the award. That the plaintiff is precluded from obtaining relief by making an assignment to the bank, and thereby accepting benefits of the award.

The provisions of this contract relating to the finality of the award of the state engineer are as follows:

_ “All of said work is to be done under the supervision and direction of the engineer selected by the State Highway Engineer. To be approved by him and accepted by said State Highway Engineer. Said State Highway Engineer shall have the right to fully decide on all questions arising as to the proper performance of said work, and in case of improper construction, or noncompliance with the contract in any manner, to suspend said work at any time, and to order the partial or entire reconstruction of said work, or declare the contract forfeited; and in case of forfeiture, to re-let said contract and to adjust any difference of price, or the damage, if any there be, which said party of the second part shall pay to Jackson County, Oregon, on account thereof, and in all such matters the decision of said State Highway Engineer shall be final. * *

“The State Highway Engineer shall, as soon as practicable after the completion of this contract, make a final estimate of the amount of work done thereunder, and the value of such work, and Jackson County shall, at the expiration of thirty-five (35) days from and after such final estimate is to be made, and is approved by the County Court of Jackson County, pay the entire sum so found to be due hereunder, after deducting therefrom all previous payments and all amounts to retained under the provisions of this contract.”

Upon the trial counsel for the county moved for a decree under Section 411, L. O. L., for the reason that the plaintiff is not entitled to the relief claimed. All of these questions thus raised are so closely allied to the determination on the merits that we pause here to read the record.

5. Having carefully read all of the testimony in the case, the next question that we deem it our duty to give our consideration is whether or not a court of equity will exercise its jurisdiction to set aside- the final certificate made by the engineer, or what may be termed an award. A construction contract, such as the one in question in this case, which stipulates that a certain engineer is expressly clothed with the broad authority to determine all questions arising in relation to the work, and in case of improper construction or failure to comply with the contract, to suspend the 'work and order the partial or entire reconstruction, or to declare the contract forfeited, and in case of forfeiture, to relet the contract and adjust any difference óf price, or the damage, if any, to the county on account thereof; providing that “in all such matters, the decision of said State Highway Engineer shall be final”; further providing that the engineer, after the completion of the work shall make a final estimate of the amount of work done, and the value thereof to be paid by the county; determine all disputes arising under the contract bearing upon the final settlement, and for payments to be made upon the engineer’s certificate, does not create a mere naked agreement to submit difference to arbitration. Such stipulations for arbitration are not merely collateral, but are of the very essence of the contract, and such agreement is not subject to revocation by either party, and an award made by virtue of such contract provisions, and evidenced by final certificate of the engineer, in the absence of fraud or of such gross mistake as would imply bad faith or a failure to exercise honest judgment, is binding upon both parties to the contract, in so far as it is confined to disputes actually subsisting and open to arbitration. This is now well settled beyond controversy: Memphis Trust Co. v. Brown-Ketchum Iron Works, 166 Fed. 403, 405 (93 C. C. A. 162); Kihlberg v. United States, 97 U. S. 398 (24 L. Ed. 1106); Sweeney v. United States, 109 U. S. 618 (27 L. Ed. 1053, 3 Sup. Ct. Rep. 344); Railroad v. Central Lumber etc. Co., 95 Tenn. 538 (32 S. W. 635); St. Paul & N. P. Ry. Co. v. Bradbury, 42 Minn. 222, 227 (44 N. W. 1). In Mundy v. Louisville & N. R. Co., 67 Fed., at page 637 (14 C. C. A., at page 587). Judge Taft expresses the rule as to the finality of the arbitrator’s decision thus:

“The authorities leave no doubt that construction contracts, in which the contractor stipulates that the engineer or architect of the owner shall finally and conclusively decide, as between him and the owner, what amount of work has been done, and its character, and the amount to be paid therefor under the contract, are legal and should be enforced. In such cases, after the work has been done, the contractor can recover nothing in excess of the amount found due by the engineer, unless he can make it appear that the engineer’s decision was fraudulently made, or was founded on palpable mistake.”

In Lewis v. Chicago, S. F. & C. Ry. Co. (C. C.), 49 Fed. 708, 710, the rule is stated as follows:

“The estimate may be impeached for fraud; that is to say, it may be shown that the engineers in charge intentionally underestimated or .overestimated the work. It may also be impeached by proof of gross errors in the measurements and calculations. If the evidence shows such errors, it either creates the presumption of fraud, or warrants the conclusion that the engineers did not exercise that degree of care, skill and good faith in the discharge of their duty which the law exacts; and in either event the court will disregard the estimate so far as is necessary to do substantia] justice.”

See, also, Elliott v. Missouri, K. & T. Ry. Co., 74 Fed. 707 (21 C. C. A. 3); Fruin-Bambrick Const. Co. v. Ft. Smith & W. R. Co. (C. C.), 40 Fed. 465, 468.

In the case at bar, it is not claimed by plaintiff that there was any intentional fraud on the part of the county or its engineers, but that in estimating the amount of the work performed, and classifying the same, there was such gross and palpable errors that it was impossible for the result to be the exercise of an honest judgment. Therefore the same is not binding.

6. The evidence in this case clearly shows that such mistakes were made by the force of assistants under the engineer. The testimony' in the case is entirely too lengthy to be portrayed here. It is only fair to say that it is not the intention to in any way criticise the state highway engineer. The difficulty appears to be, and this county is not alone in the matter, that the county after the contract was awarded to the plaintiff placed too much reliance and responsibility upon the state highway engineer without provision being made for a sufficient corps of assistants. The state highway engineer’s time and attention were demanded in various counties of the state; the real work of engineering devolved upon the district engineer who was in the office most of the time, and the engineer’s work upon the road devolved upon another who in turn was compelled to rely for assistance upon men who were not thoroughly competent engineers, and did not understand the use of ordinary engineering instruments.

Having made this explanation, a general description of the method of procedure must suffice. Plaintiff Sweeney, after executing the contract, proceeded to the scene of the works with a crew of men and his construction outfit. In about three weeks, an engineer appeared. In the meantime the contractor was compelled to use all of his force in clearing the right of way without commencing actual construction. Engineering work for the construction of the road and the profiles for the work were far behind what they should have been at the time of the commencing of the work; there was no complete survey of the line, and the location was done piecemeal, part from the north, part from the south and part' from intermediate points, and at the places where these survey lines met it was necessary to resort to equations. The work of construction was practically dragging upon the heels of the engineering work, waiting for the surveys and the setting of grade stakes, and as a result there were many delays in the work, and many changes made in the plans which necessitated changes in the construction. In several places on the line of the fourteen miles of the road the location of the route was changed by means of offsets, 3.15 miles of which were made. Many changes were made from the partially completed profiles, for instance on one curve, the line was changed so as to increase the distance 16 per cent. Yet as we understand the record, the several estimates which went to make up the final estimate on March 29, 1915, were based upon and figured from the profilés without taking into consideration the changes that had been made. By the final estimate, the plaintiff was allowed a balance of $35,573.56. The plaintiff protested against the allowance as shown by the final estimate, and filed such protest with the County Court of Jackson County giving many reasons therefor in detail, and claiming a balance of $82,986.11, for the work upon the highway. The final estimate was signed by plaintiff under protest. There was never an acceptance of the final estimate by Sweeney in settlement or satisfaction of his demand against the county. The assignment by Sweeney of the amount allowed to the bank as collateral security was only a partial assignment of his claim against the county. It was an equitable assignment. The defendant county was not prejudiced thereby in any manner. The interest of the hank can be appropriately adjusted and protected in a suit in equity. An action at law would not afford an adequate remedy.

7. We attach no particular significance to the fact that plaintiff verified the final certificate by a statement to the effect “that the work was actually performed and the material furnished as therein charged”; and there is due according to the contractor the sum of $35,573.56, and that the same has not been paid. This verification is in no way inconsistent with plaintiff’s claim in this suit. He not only claims the amount stated in the final certificate, but considerably more. This did not change the nature of the final certificated On account of the various errors entering into the final adjustment indicating a want of the exercise of that degree of care, skill and good faith which the law exacts under the rule stated by the authorities above noted, and many more which might be added, the final estimate should be set aside and corrected.

8. The contract for the construction of the highway named the state highway engineer with reference to his official position. It is shown by the evidence that the final estimate signed by that official did not represent his judgment as to the amount of work performed or the classification thereof, but was based wholly upon reports from his subordinates. The contract gave to the state highway engineer the power of naming those subordinates. No provision appears to have been made for any hearing before the highway engineer or before his assistants; none appears to have been had except the rather summary proceeding when Mr. Bowlby devoted about two hours to the examination of some 2,000 force bills. A fair basis for the estimate or award on account of the many inaccuracies and mistakes shown by the testimony was lacking. The proceedings and grounds were wanting which give to an ordinary common-law arbitration and award its binding effect. The final estimate assailed in this suit is merely prima fade correct. The duty of a court of equity as in all .such cases is to so decide as to mete out substantial justice, and if upon all the evidence it appears that the estimate is not fair, that the plaintiff has not enjoyed the privilege every man is entitled, to, namely, an impartial hearing and determination, but that it appears as in this case that the estimate is based upon reports of incompetent subordinates and is grossly erroneous, then it is the duty of the court to set aside the final estimate and institute an independent inquiry as to the amount of compensation which the plaintiff has earned, and is justly entitled to under the contract. The testimony in the case is ample to bring the same within the requirements of the authorities above referred to. The plaintiff failing to obtain a satisfactory settlement with the defendant county solicited the services of Gr. A. Kyle an eminent and experienced engineer who took to his assistance Harry Kyle and Douglas Kyle, two other experienced engineers, and also other assistants, and obtained the data available to assist them from the county engineers, particularly a copy of the cross-section, book of the survey made by the county engineers with the' engineer’s notes, and cross-sectioned a large part of the work taking the center of the road as constructed for the center line, and made many remeasurements; calculated the amount of material removed and. work done the entire length of the road, except where force account was claimed, and also made a reclassification of the material so moved. In doing this, the testimony shows that they found about 90 per cent of the stakes which had been set by the county engineers, and many bench-marks. They devoted about 48 days, May 23 to July 10, 1915, in the prosecution of this work. They also had the assistance of a competent and experienced engineer, Mr. H. S. Houston, in the reclassification of the material. All of these engineers testified upon the trial, giving the result of their investigation.

The total yardage not including the work designated as the

Steinman crossing being.......274,173.90 cubic yards

The total number of cubic yards of the excavation as shown by the county engineers was......................257,469.89

The amount of estimate of Kyle and Houston being........ 16,704.01

—in excess of the total yardage allowed by the county engineers.

The trial court set' aside the award made by the highway engineer and adopted the amount of excavation as fixed by the engineers for the county, and adopted the classification of the material excavated as estimated by the plaintiff’s engineers. Taking the Kyle and Houston estimate of the total without disturbing the figures of the other classifications and computing the same as common excavation at the price thereof, 29 cents per cubic yard, makes $4,844.16, which should be allowed plaintiff in addition to the amount allowed by the trial court.

The county employed á skilled engineer to examine the highway and in company with the resident highway engineer devoted two days in checking the classification that had been made by the resident highway engineer. This was about two years after the completion of the work, and at a time when several sections of the road were covered with snow, and it was impossible for the engineers to make definite calculation as a basis. The lists and tables made by Kyle and Houston and their assistants were checked and tested by the skilled engineers employed by the county, and one error was found in the computation of a cross-section amounting to about 4 per cent. The test so made stabilizes the Kyle and Houston estimates. For delays and changes in the construction of the highway necessitated and required by the county' engineers other than those allowed by the lower court, the evidence strongly sustains the complaint as found by the trial court, and in addition thereto much more than the amount here allowed. The interest on the amount found due is disallowed for the time prior to the date of the decree of the lower court under the rule announced in Sargent v. American Bank and Trust Co., 80 Or. 16, 39 (154 Pac. 759, 156 Pac. 431). The plaintiff did not perfect an appeal. In support of such allowance here made, let us take a small portion of the testimony as a sample, for instance, that relating to the Dollarhide Overhead bridge crossing the railroad. A statement prepared from the daily labor and material reports showing the approximate cost of this bridge is as follows:

Labor.........................$5,139.10

Teams ....................... 2,478.38 $ 7,617.48

Ten per cent................... 761.75

Material ...................... 7,074.88

Total ......................... $15,454.11

Allowed on estimate (K. and H.). 9,282.61

Leaving a balance $ 6,171.50

The difficulties encountered by plaintiff in the construction of this bridge are detailed about as follows: The construction was commenced on May 11,1914, and it required until November to complete it. After its completion the railing built according to the plans failed and it was necessary for plaintiff to return and construct a new railing. At the beginning, the engineers failed to give the final depth of excavation and plaintiff was required to continue the excavation for the abutments and piers after the depth first designated was reached. The location of the piers was changed twice before completion. After the east abutment was well under way a general change was ordered and the angle or “skew” as called by the witnesses, at which the bridge crossed the railroad was changed. Lumber was brought upon the ground and some of the forms were constructed and put in place and the pouring of concrete was undertaken when the whole plan of the bridge was changed. The center span being lengthened three feet and the other spans shortened. "When the forms were built in accordance with the revised plan there were no details for the girders and beams, and after these were furnished another change was made. Plaintiff was directed by the county engineer to: “Add one inch to length of each girder on account of 6 per cent grade.” After the bridge was well along toward completion it was discovered that insufficient clearance over the railroad tracks was afforded and it became necessary therefore to change the girders. On October 7, 1914, the contractor was required to change,a girder by cutting 11 inches, and the other girders were also changed. These changes necessarily resulted in delays and expense and the change in the form of the structure materially affected the kind and quantity of material to be used. The angle at which the bridge crossed the track was made more obtuse and this naturally lengthened the structure and the increase of lateral clearance on the center .span resulted in changes in material, bills for which had been made up in accordance with the original plan. The changes required more material and also the cutting of the steel in lengths to conform to such changes. The girders, weakened by the change in order to give greater vertical clearance, required additional reinforcement. The steel in the piers had to be spliced. A reinforced concrete railing on both sides of the bridge was called for. The specification for such reinforcement consisted' of wire only one eighth of an inch in diameter. The plaintiff’s foreman protested against this as insufficient, but the plans were followed with the result that the vibration from passing trains cracked the railing and necessitated its being rebuilt. Plaintiff was not furnished with sufficient plans. The only plan of the bridge actually constructed as stated by Mr. Bennett, county engineer on the work (page 2213), was prepared after the bridge was completed. The county engineers allowed extra for this bridge, $2,000, which the trial court approved. We think to this should be added $3,622.84, as additional damages on the Dollarhide bridge, being a portion of the balance of the actual cost which should be allowed plaintiff for this bridge and other similar delays claimed in the complaint for which no provision has been made, making the revised estimate of the court as follows:

T — I 05

■ — with interest at the rate of 6 per cent per annum from April 27, 1917, until paid.

9. Plaintiff claimed and was allowed compensation at force account prices for the work between Stations 563 and 594, known as the Steinman Section, and the defendant county complains. We do not understand that any serious controversy exists with respect to the facts relating to this portion of the work. The testimony shows that as to the grading no opportunity was afforded plaintiff to perform the same according to his contract during the summer months of 1914, when the work was contemplated to be done. The line of these sections of the highway was located adjacent to the right of way of the railroad company and during the whole of the summer a controversy was waged with the company as to the extent to which an encroachment would be permitted on the right of way. On July 31st, Mr. Bennett wrote to Mr. Sweeney advising him that they had agreed to discontinue all work on the S. P. right of way for a week or ten days, until the railroad engineers could prepare and forward maps and plans showing what part of their right of way they would allow the county to use. About October 11th, they started in to relocate the line of the highway, but there was a relocation after that. Mr. Bennett, the county engineer, said (see page 1192) that there were three or four changes between these stations; changes in the grade and numerous culvert changes were made between these stations so that it was not possible for plaintiff to undertake this work until in the month of October. The first plan of the bridge was dated 1913, and called for only two spans, the constructed bridge consists of three spans. The style of the bridge was not determined until October 8, 1914, when a plan was delivered to plaintiff which, appears to be insufficient as a working plan. The estimate in the contract of Class “ A’’ concrete was 593 cubic yards, while the. final estimate shows 1,519.88 yards. By the county requiring the grading to be done in the winter months, disastrous results were caused. It was necessary to move 6,211 yards of adobe according to the estimate between these stations, and it ‘is agreed that it is practically impossible to move this material during the rainy season. The grading between these stations could not be finished until the bridge was complete, as part of the material excavated had to be hauled from the north side of the bridge to make a fill on the south side. The same mistake, as to clearance, appears to have been made in the plan for the Steinman bridge that was made by the engineers on the Dollarhide bridge. Owing to delays on the Steinman bridge in mixing and pouring the concrete in freezing weather, elaborate precautions had to be taken to prevent damage from frost. This was required by the county engineers. It appears that it was necessary for the plaintiff to heat the water and the gravel and maintain a watchman to keep the fires going as a protection against frost. The contract required the work to be completed September 1, 1914, but the right of way between these stations was not secured, nor the plans of the bridge furnished until about five weeks after that date. The changes in this bridge were so radical that it cannot be successfully maintained that such a structure as completed was within the contemplation of the parties when they made the contract: 9 C. J., § 73, p. 734. See Hayden v. Astoria, 74 Or. 525 (145 Pac. 1072). A similar situation as is here presented was before the court in Indianapolis Northern Traction Co. v. Brennan, 174 Ind. 1, 24 (87 N. E. 215, 223, 30 L. R. A. (N. S.) 85). The court there said:

“The contract nnder which they were obligated required that all of the work which they had contracted to perform should be completed by August 15, 1903. Certainly, when appellant company obligated these parties to do and finish the work within a fixed period, if was its duty to afford them a fair and reasonable opportunity to begin and complete the work; or, in other words, under the mutual contract entered into between it and them, it became its duty to furnish the required material, secure the right of way, and have the road grade in readiness, as required by the contract, so that appellees, in the exercise of reasonable diligence, might begin and finish the work within the prescribed period without being subjected to unreasonable cost or expenses on account of the default, delays, and hindrance of appellant. Its default or failure in these respects would subject it to liability for whatever damages appellees might reasonably sustain on that account. * * ” Citing “French v. Cunningham, 149 Ind. 632, 637 (49 N. E. 797), and authorities there cited; Louisville etc. R. Co. v. Donnegan, 111 Ind. 179 (12 N. E. 153); Lewis v. Atlas etc. Co., 61 Mo. 534; Minneapolis Mill Co. v. Goodnow, 40 Minn. 497 (42 N. W. 356, 4 L. R. A. 202); Mississippi River Logging Co. v. Robson, 69 Fed. 773 (16 C. C. A. 400).”

See, also, Salt Lake City v. Smith, 104 Fed. 457 (43 C. C. A. 637).

The contract in question in the present case stipulates in regard to extra work as follows:

“The contractor shall do such extra work and furnish such materials as may be required by the State Highway Engineer for the proper completion or construction of the whole work herein contemplated; # * The contractor shall receive for such extra work the actual cost of all materials furnished bylhim as shown by bis paid vouchers. For such labor and teams as are necessary he shall receive the current prices in the locality, which shall have been agreed to in writing by the engineer and by the contractor, plus ten (10) per cent.”

By this stipulation the parties fixed a certain rate of payment for extra work of this character, thus avoiding the question as to “reasonable value.” This construction of the contract by the parties is borne out in making and receiving payment at force account prices for similar extra work as that performed between Stations 563 and 594. The proof sustains the claim made by plaintiff both as to material and labor. The bridge as constructed and the work done between these stations was entirely different from that contemplated by the contract in the first instance. The stipulation made a part of the contract that the state highway engineer during the progress of the work might by giving written notice to the contractor, alter any of the details of the construction in any manner that might be found expedient or suitable without invalidating the contract, relates as the language suggests to details, or proportionally small changes as when necessary to the construction of the contemplated bridge, and not to an entire change of the plan or time for the construction thereof. The stipulation in the contract that:

“The contractor shall receive for such extra work the actual cost of all materials furnished by him as shown by his paid vouchers. For such labor and teams as are necessary he shall receive the current-prices in the locality, which shall have been previously agreed to in writing by the Engineer and by the contractor, plus ten (10) per cent”

—makes applicable the agreement made by the parties in regard to force-account prices above quoted. Tbe contract having provided for such a contingency, it is unnecessary to resort to proof of the reasonable value of the work. We approve the finding of the trial court as to the allowance of the work on the Steinman section.

The contractor furnished to the agents of the county statements-, of the force account work claimed by him, substantially as provided for in the contract. Some of these claims were allowed by the county engineers. The plaintiff was not at all times informed as to what items were allowed and what were disallowed, so that when the defendant county demanded of plaintiff a statement of the various items claimed by him, its agents were in possession of the same detailed information or more than plaintiff. Therefore, it was not erroneous for- the trial court to deny an order requiring a further presentation of such items under the circumstances of this case. As the. trial of the case progressed, counsel for the defendant county were furnished with the various lists of estimates and information as to the surveys and engineering work of the plaintiff’s engineers, and were permitted access to the books of account and other records of plaintiff so as to facilitate a fair trial of the cause.

In the construction of the highway, the plaintiff encountered material known as “adobe,” “gumbo,” or “sticky,” which it is claimed on his behalf was not covered by the contract and should be paid for on a basis of a reasonable value, under the rule in Indianapolis Northern Traction Co. v. Brennan, 174 Ind. 1 (87 N. E. 215, 228, 90 N. E. 65, 68, 91 N. E. 503, 30 L. R. A. (N. S.) 85); Holm v. Chicago, M. & P. S. Ry. Co., 59 Wash. 293 (109 Pac. 799).

10. The determination of tMs question depends upon the classifications made in the contract. The material mentioned in the contract is comprised under the heads Earth, Hard-pan, Loose Rock, Solid Rock, Shell Rock and Solid Rock Borrow. Earth will include clay, sand, loam, gravel and all hard material that can, in the opinion of the engineer, be reasonably plowed, and all earthy matter or earth containing loose stones or boulders intermixed, and all other material that does not come under the classification of hard-pan, loose rock, solid rock, shell rock and solid rock borrow.

11. “Hard-pan” will include material, not loose or solid rock, that cannot, in the opinion of the engineer be reasonably plowed, on account of its own inherent hardness. It is the position of the engineers of the county that adobe comes within the classification of “earth” according to the contract, but in the allowance of accounts a portion of this material was classified as hard-pan.

12. It is shown by the evidence that adobe cannot be reasonably plowed. This would seem to bar it from the classification of earth. Strictly speaking, of course, it is part of the earth, but it appears to us that in the printing- of the contract, and the execution of the same, this class of material was not within the contemplation of the contracting parties, and was not provided for by the terms of the contract. When we take into consideration that in the Siskiyou Mountains where this road is located, there are many kinds of material encountered, such as lava formation, it is not at all strange that the provision should have been omitted from the contract. Neither does the ‘1 gumbo ’ ’ come within the specification of hard-pan which “on account of its own inherent hardness” cannot be plowed. It appears from the evidence that adobe in its natural state cannot he successfully blasted or plowed, but to use the description given it had to be “dug out” as best it could be. It is shown that during the wet season it is very difficult to handle adobe on account of its being so sticky, and when it has dried it is nearly as hard as rock, and that a reasonable compensation for excavation of this material is seventy-five cents per cubic yard. The plaintiff having contracted to construct the highway which necessitated the excavation of the material known as adobe, and •no price being agreed upon therefor, the law fixed the price at its reasonable value. It appears to have been partially conceded by the engineers for the county that adobe was not provided for by the contract by a portion of this material being classified as hard-pan. This was not an equitable classification, the unit price of hard-pan being less than one half the actual cost of moving adobe. While it may not be impossible to plow adobe, the testimony clearly shows that it is not practicable to do so. In Indianapolis Northern Traction Co. v. Brennan, 174 Ind. 1 (87 N. E. 215, 228, 90 N. E. 65, 68, 91 N. E. 503, 30 L. R. A. (N. S.) 85), the court in considering the contract specifications said:

“The term ‘plowed’ was certainly used in its usual meaning, and must have been so imderstood by the parties. They did not mean or intend thereby the mere £rooting-up’ of the material or cutting a very shallow furrow, or such plowing as would require men to ride upon the whiffletree and upon the plow beam in order to keep the nose of the plow in the material which was attempted to be plowed.”

This language is particularly applicable to the material in question as described by the witnesses. The finding of the trial court in this -respect was reasonable and equitable, and we approve the same.

As to the correctness of the final estimate as the determination of the quantities and hinds of material to which the unit prices fixed by the contract were applicable, it seems plain that unless Mr. Bowlby, the highway engineer, and Mr. Kittredge, his assistant, had reliable data to determine quantity and classification, the estimate must of course lose the benefit of any presumption in its favor. The contract provides that “all grading shall be done and estimated by the cubic yard.” The obvious purpose of this provision was to insure payment to the contractor for the actual quantities and not for any theoretical quantities excavated by him. The measurements of the county engineers were largely the theoretical contents of the road prism as it was expected the excavation would take place. The lateral lines of the excavation were assumed by the county engineers on the hypothesis that material of a certain character allowing a certain slope line would be encountered when the excavation was made. Of course whenever a different kind of material was encountered, the actual slope line was necessarily either flatter or steeper, and the theoretical contents of the road prism did not represent the actual excavation. The practice of employing offsets in case of line changes adopted by the county engineers resulted as follows: Whenever an offset was employed on a curve, the theoretical contents of the excavation did not correspond with the actual excavation, the line being lengthened or shortened, and the distance between cross-sections thereby affected.

We have carefully read the evidence and examined the case from many angles, which time and space forbids a lengthy statement in regard to. There was no error in the trial court refusing to dismiss the suit at the close of the introduction of testimony, or in rendering the decree.

On petition for rehearing.

In Banc.

Denied. Mr. Alfred E. Reames and Mr. George M. Roberts, District Attorney, for the petition. Mr. Loyal H. McCarthy, Mr. Samuel R. Huston and Messrs. Carey & Kerr, for plaintiff and respondent. Messrs. Chamberlain, Thomas Kraemer & Humphreys, for defendant and respondent.

With the change in the figures above mentioned, the decree of the lower court is affirmed.

Affirmed. Rehearing Denied,

Moore, J., absent.