Berger v. Sequoia Union High School District

DEVINE, J. pro tem.

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Plaintiff has appealed a judgment in which it was decided that defendant school district was not responsible for certain claims made by plaintiff under a contract for grading land. Plaintiff had bid on the grading of a hillside site for the San Carlos-Belmont High School. The contract called for removal of earth from the hillside, the terms being payment to the contractor of 17 cents per cubic yard, with the provision that contractor could dispose of it as he saw fit. The estimate set forth in the contract was that 71,000 cubic yards of material would be removed.

The work was to be done chiefly on the southwest quadrant of the school site, as appears more specifically below. After plaintiff had made some progress with the work, another contractor, whose work was to have been mainly on the southeast quadrant, came upon the southwest quadrant, at the direction of the district’s engineer, and removed some 25,255 yards of material from the southwest quadrant. The reason for directing the other contractor to do this was that the school district had not yet acquired title to some of the land

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in the southeast quadrant, and additional material was needed for fills in that area. Plaintiff’s basis of complaint is that he was deprived of a large quantity of material which he could have excavated, hauled away and sold at a profit.

When plaintiff protested to the engineer, he was told to remove material in amounts equal to that of which he was deprived from the southeast quadrant, for the title matter now had been settled. That he obtained an equivalent amount of material is stipulated, but plaintiff contends, and to a certain extent it is admitted by defendant’s witnesses, that the earth in the southwest quadrant was more easily excavated and was suitable for sale, while that in the southeast quadrant consisted largely of boulders which were expensive to excavate and were of little or no value for sale. Plaintiff testified that he was told by the district’s engineer to keep track of his costs for the work on the southeast quadrant, and that he would recover his costs; but defendant’s engineer testified that there was no agreement for extra compensation, that he was without authority to make such agreement and that it was possible he had told plaintiff to keep records and that “it was up to the Board,” but he did not even recall that.