Raisch v. County of Monterey

STURTEVANT, J. In an action to recover an alleged balance due under a construction contract the trial court made findings in favor of the defendant and from the judgment entered thereon the plaintiff lias appealed and has brought up typewritten transcripts.

The' plaintiff alleged a contract for an agreed price in his first count and he alleged the reasonable value in his second count. In its answer the defendant denied that there was any balance due, alleged full payment and discharge, and alleged that the controversy arose out of a •written contract which it pleaded in haec verba. On the trial it was the theory of the plaintiff that the written contract provided the terms of the contract and a specified sum for its performance and that it also provided for the payment of the additional sum of $1 per yard if, by order of the defendant’s agent, the county surveyor, the plaintiff should lay the concrete road base in strips, one-half at a time. On the other hand, it was the contention of the defendant that although the general printed specifications contained a passage, as claimed by the plaintiff, such passage was subordinate to and gave way in the presence of certain special written specifications inconsistent therewith, and further, even though the contract contained the provisions claimed by the plaintiff, that the plaintiff never came within its provisions and is not entitled to any relief thereunder.

That the contract is ambiguous is manifest. That both parties so viewed the instrument appears from the fact that before the plaintiff made a bid and several times thereafter the representative of the plaintiff deemed it necessary to call, and therefore called on the county surveyor of the defendant county and asked for his interpretation of subdivision “K” of section 28 of the printed specifications. That officer freely stated his interpretation. It also appears that before the bid was let the members of the board of supervisors, the county surveyor, and the plaintiff’s representative held a meeting at which said clause was discussed and the plaintiff was specifically advised that the defendant [629]would not pay the dollar charge provided in said subdivision “K”. The ambiguity arose in this manner. In framing the contract a printed form of specifications was used. That form contains over four hundred folios. It covers specifications of roads of various types, also of bridges, etc. To it are annexed certain special specifications comprising about thirty-five folios. The latter contained among other provisions the following: