Cofell's Plumbing & Heating, Inc. v. Stumpf

290 N.W.2d 230, 1980 N.D. LEXIS 204
CourtNorth Dakota Supreme Court
DecidedMarch 13, 1980
DocketCiv. 9695
StatusPublished
Cited by2 cases

This text of 290 N.W.2d 230 (Cofell's Plumbing & Heating, Inc. v. Stumpf) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cofell's Plumbing & Heating, Inc. v. Stumpf, 290 N.W.2d 230, 1980 N.D. LEXIS 204 (N.D. 1980).

Opinions

SAND, Justice.

Cofell’s Plumbing & Heating, Inc. [Co-fell’s], appealed from a judgment of the Morton County District Court which awarded Cofell’s $3,029 for work performed pursuant to a construction contract. We affirm.

Mandan Acres is a partnership comprised of Leo Stumpf, Joseph Wetsch, Christ Nuss and Ben Meier and is engaged in the development of residential lots in Mandan, North Dakota. In early 1978, Mandan Acres hired the engineering firm of Swenson, Hagen & Company of Bismarck, North Dakota, to prepare specifications and contract documents for a bid on installing sewer and water services to a new residential area then being developed by Mandan Acres. In May 1978, bids were called for and Cofell’s was awarded the contract.

The area of dispute in this case involved only the sewer line installation and related to the amount of compensation that Cofell’s was entitled to for rock excavation. The contract between the parties set unit prices on estimated quantities of work to be done and specifically fixed the compensation for rock excavation at $40.00 per cubic yard. The engineer’s proposal estimated rock excavation in connection with the sewer line at 100 cubic yards, but the actual compensation for rock excavation was to be determined after completion of the work by multiplying the actual number of cubic yards of rock removed by the contract rate of $40 per cubic yard.

In the course of digging the sewer trench, Cofell’s encountered a stretch of ledge rock which measured 132 feet long by 2½ feet deep by. 28 feet wide. Defendant Joe Wetsch discussed with Cofell’s on-site superintendent the advisability of having a caterpillar with a ripper come in and break up the rock. The superintendent told Wetsch that he didn’t want to be held up by waiting for the ripper and that there was no problem in proceeding with the caterpillar backhoe machine Cofell’s was using for the sewer line excavation. This backhoe machine had a 40-foot boom a,nd a bucket 42 inches in width which could hold 1.5 cubic yards of material. Cofell’s was using a machine of that size on the project because it knew that 16-foot deep trenches were required for the sewer line.

After the 342.2 cubic yards of ledge rock was removed by Cofell’s with the backhoe machine, Cofell’s superintendent was not certain whether or not it would be compensated for as a rock excavation under the contract. The project engineer, however, later concluded that Cofell’s should be paid for excavating the 342.2 cubic yards of rock.

Upon completion of the project, Cofell’s submitted a final payment request for $66,-717.00, which included 450 cubic yards of rock excavation from the sewer line at $40 a cubic yard, or $18,000.00. Removal of the disputed ledge rock of 342.2 cubic yards represented $13,688.00 of the rock excavation total.

Mandan Acres paid Cofell’s $50,000.00, leaving an unpaid balance claimed by Co-fell’s of $16,717.00. Mandan Acres tendered Cofell’s this balance less $13,688.00 on the disputed ledge rock, or the sum of $3,029.00. Cofell’s refused the tender and instead filed a mechanic’s lien on the property where the work was performed. Mandan Acres demanded Cofell’s to foreclose its lien and this action ensued.

The case was tried before the Morton County district court sitting without a jury, and was resolved by an application of two [232]*232provisions of the specifications in the contract between Mandan Acres and Cofell’s. Section 801-3.3 of the contract specifications governed the question of when rock excavation was to be measured for payment and provided in relevant portion as follows:

“801-3.3 Rock Excavation. All rock found in the trench area which cannot be removed by a trenching machine or by workmen with a pick, spade or shovel shall be classified as solid rock and measured for payment if of two (2) cubic feet in contents or more per each individual rock, boulder or continuous slab of ledge rock. Solid rock shall be measured for payment on the basis of and limited to the maximum trench width allowed under sub-section 801-3.2, ‘Excavation and Preparation of Trench’. If solid rock extends below the necessary depth of excavation it shall be measured for payment to a horizontal plane six (6) inches below the bottom of the pipe. All rocks smaller in volume than two (2) cubic feet or rock that can be removed by a trenching machine and/or by workmen with pick, spade or shovel without the aid of blasting, wedging, sledging or barring shall not be classified as solid rock, but shall be termed excavation and the cost for the removal thereof included in the unit price bid for the item for which the excavation is made.” [Emphasis ours.]

Under the contract, then, if the ledge rock in question could not be removed by a trenching machine or by workmen with a pick, spade, or shovel, its excavation was to be compensated for at the contract price of $40.00 per cubic yard.

Also, Section 105 of the contract specifications gave the engineer of the project binding authority to determine all questions concerning specification interpretations and the execution of the work. That section provided as follows:

“105. ENGINEER. Where the word ‘Engineer’ is used in the specifications or in the contract, it shall be and is mutually understood to refer to the City Engineer or his authorized representatives. The Engineer will give the grades and locations for all work and no work depending upon such grades or locations shall be commenced until after the same have been established. Upon all questions concerning the interpretations of these specifications or the plans or the execution of the work, the decision of the Engineer shall be binding upon both parties. Detail plans of all work not completely shown on the plans now on file will be furnished by the Engineer from time to time and the work shall be executed in accordance with such detail plans.” [Emphasis ours.]

The district court found that the caterpillar backhoe which Cofell’s used to remove the ledge rock in issue was a trenching machine within Section 801-3.3 of the contract specifications. Further, the district court found that all parties agreed that the rock in question could have been removed by working with a pick, spade, or shovel. Therefore, the district court concluded that Cofell’s was not entitled to compensation at $40.00 per cubic yard for the 342.2 cubic yards in issue.

The district court also concluded that, regardless of the project engineer’s position that Cofell’s should be paid for removal of the ledge rock, Section 105 of the contract specifications had no application to this matter. The district court stated that that section gave the engineer final and binding authority on matters dealing with questions of performance or of quality or quantity of the work, but did not include binding construction of clauses dealing with questions concerning payment for work performed.

Judgment was entered against Mandan Acres for the $3,029 balance it had previously tendered to Cofell’s, and Cofell’s appealed the judgment to this court.

Cofell’s two principal contentions on appeal were that the district court erred in finding that the backhoe used to remove the ledge rock was a trenching machine, and that the district court erred in finding that the ledge rock could also have been removed by workmen with picks, spades, or. shovels.

[233]*233These district court findings of fact will not be set aside on appeal unless they are clearly erroneous.

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Related

Wilhelm v. Berger
297 N.W.2d 776 (North Dakota Supreme Court, 1980)
Cofell's Plumbing & Heating, Inc. v. Stumpf
290 N.W.2d 230 (North Dakota Supreme Court, 1980)

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Bluebook (online)
290 N.W.2d 230, 1980 N.D. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cofells-plumbing-heating-inc-v-stumpf-nd-1980.