Contra Costa Construction Co. v. City of Daly

KOFORD, J.,

pro tem.

This is an appeal from a judgment for extra work, in favor of plaintiff and against defendant, a municipal corporation.

The plaintiff and the city of Daly City, a municipal corporation, entered into a written contract for the construction of a water-pipe line for the city’s water supply. The pipe-line was required to be laid, by the contract, plans, and

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specifications, in Mission road (outside of city boundaries), three and one-half feet below the old curb line of the road. After plaintiff commenced work it was stopped by an injunction not involved here, and before work recommenced it developed, or was discovered for the first time, that the state was undertaking the construction of a section of concrete paved highway along this portion of Mission road. The State Highway Commission, as it is popularly called, asserted and maintained exclusive possession of the road and the right of way, including the strip of land adjoining the pavement where the pipe was to be laid. The city’s engineers thereupon wrote a letter to the Highway Commission asking for a permit on behalf of the city to lay the pipe. This permit was granted, but only on certain conditions as to the manner in which the work should be performed. Among those conditions was the requirement that the pipe be laid four feet below the profile of the highway pavement instead of three and one-half feet below the old curb line.

The plaintiff was informed by the city engineers of this new requirement and of changes in the plan necessary to meet this requirement. The plaintiff continued with the work, and then discovered that this change in the plan would bring the pipe trench below the surface soil and into rock, and it protested that this would entail considerable additional expense. The engineers orally directed the plaintiff to proceed with the work and “keep a good record of it and see what it costs, and when we get through we will make a fair settlement with you.”

After the work was finished a claim for the extra work, labor, and materials necessitated by this change in the plan was presented to the board of trustees and was by it rejected. This suit was commenced for the sum of $2,844.80, and resulted in a judgment for $1,432.98. The original contract price was $8,900.