Lisher v. Fairbanks

KNIGHT, J.

Plaintiff as assignee brought this action to recover of and from the defendant A. J. Fairbanks the sum of $2,023.77, for certain road construction work done and performed by plaintiff’s assignor, G. L. Lisher. The second amended complaint is in two counts. The first count declares upon a written contract and covers a demand of $1,979.03, and the second count is upon a

quantum mei'uit

for the recovery of $44.74 for work done on the same road, outside of the written contract. Before the trial was concluded plaintiff was paid the sum of $1,454.11 on the amount claimed to be due under the first count, leaving in dispute a balance under that count of $502.43. Plaintiff was denied relief on both counts and has appealed.

In September, 1920, the county of Sonoma awarded a contract to respondent for the rebuilding of section “A” of the Healdsburg-Forestville highway, which included the work of grading, filling, removal of oil from roadway, graveling, and concrete work. Subsequently, on April 1, 1921, respondent entered into a separate contract with G. L. Lisher, appellant’s assignor, to do the concrete work specified in the county contract. Referring to the first count, the controversy arises over the refusal of respondent to pay for the excavation of 669.9 cubic yards of earth necessarily removed by Lisher below the adopted grade line in order to construct the concrete drain boxes in conformity with the county plans and specifications.

Respondent’s contract with the county was based upon certain unit prices, which, so far as they are important here, were as follows: “For excavations ... as may be necessary to bring the surface of the roadway to conform with the adopted grade and cross-section, the sum of eighty-five cts. (85 cts.) per cubic yard. The yardage to be paid for being only in excavation.” For graveling the entire length of the road, $21,315.80. “For all concrete, including all excavations, back filling, forms, materials, reinforcement, hauling and labor, the sum of Thirty Dollars ($30.00) per cubic yard in place complete. This applies to headwalls, catch basins,

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small culverts, etc., but does not apply to bridges and larger structures.” The “grading” section of the contract and specifications provided “ (j) The contract price per cubic yard of excavation, shall include loading . . . clearing, ditching, excavations and removal of oil, rock, and all other work incidental to the grading as shown in paragraph (a) under ‘ grading. ’ The Contractor shall be paid only for that portion of the excavation and removal of oil which lies above the adopted grade line and shall not be paid for the excavation and removal of oil which lies below the adopted grade line.”