OPINION
BOOCHEVER, Justice.
This appeal arises out of a suit by Anchorage Asphalt Paving Co. (hereinafter Anchorage Asphalt) to recover certain payments due upon a paving contract it had entered into with J. R. Lewis. Lewis asserts that the paving job done pursuant to the contract was performed in such a manner as to constitute a breach of certain express and implied warranties that the project would be executed in a workmanlike manner. In his counterclaim, Mr. Lewis seeks damages in an amount necessary to repair the deteriorating streets of his trailer court to the extent that the deterioration is attributable to the breach of contract.
The trial court rendered a judgment for Anchorage Asphalt for the unpaid balance of the contract price plus interest. Lewis on appeal seeks reversal of that decision on the grounds that certain of the trial judge’s findings of fact were clearly erroneous, and that he misconstrued the law applicable to this case.
I
STATEMENT OF FACTS
In approximately 1965, Mr. Lewis
purchased 40 acres of land near Anchorage, Alaska and he began, shortly thereafter, to develop this tract into a trailer court which he named Four Seasons Mobiland. Since much of the property was composed of peat the first phase of development required that this portion be filled in and leveled to create a stable surface acceptable for trailer sites. Much of the fill was obtained by cutting into a high hill in the southeast corner of the property and then spreading this soil, which was composed primarily of glacial till, over the peat according to an established grade which would provide proper drainage. Glacial till is the residue deposited by a retreating glacier composed of boulders, gravel, dirt, clay, some sand and a fine silt all intermingled. In its natural state, it resembles hard pack and is a very stable material. When the material is removed and disturbed, it tends to revert to its separate components and must be compacted to a high degree in order to make it stable so
as to support heavy loads. Thus, the ground upon which the trailer court was located consisted of an upper layer of fill ranging in depth from two to six feet resting on a peat base which itself would range up to ten to twelve feet in thickness.
For the most part, Mr. Lewis acted as the general contractor. He did some of the filling himself, and the rest was done by a subcontractor. The over-all design of the trailer court was the handiwork of Lewis and his mechanical engineer. In particular, Lewis located and designed the streets. For the first year as a temporary measure, Lewis put a one- to two-foot layer of pit run gravel in the roadbeds since the glacial till alone was not a suitable road surface. At that time, there were only three streets servicing his original two rows of trailers. It was anticipated that these roads would eventually be paved.
In 1968, Lewis contracted with a different company, Alaska Asphalt Paving Company, to pave those first three streets. He specified that he wanted a “cold mix” or “chip and penetration oil mix” used since it was cheaper than asphalt, and he had seen this method used with some success on other roads in the vicinity. The three roads (32,000 square feet) were paved at a cost of $14,000. Unfortunately, snow removal equipment scraped and peeled away much of this fragile surface that following winter.
In the summer of 1969, Lewis decided to have four new streets of his trailer court paved, and the three old streets repaved. He realized that the loss on the first job had been due to his own inexperience. This time he wanted the streets paved with the more durable hot mix asphalt. He testified that he had asked for a “good” and “complete” paving job during the preliminary negotiations indicating he wanted the contractor to do whatever was necessary to achieve a satisfactory pavement which would last the normal useful life (ten to fifteen years).
He solicited bids by Telephone from three contractors. Other than the fact that he wanted hot mix asphalt, Lewis presented no plans or specifications for the paving job and even left the amount of asphalt surface to be applied up to the discretion of the contractor. Lewis chose to accept the bid from Anchorage Asphalt.
Before making the bid, Joe Longoria, Vice-President of Anchorage Asphalt, spoke with the defendant who indicated that he wanted a good paving job. Later, Julian Longoria, another representative of the company, came out to look over the site. Finally, Joe Longoria himself came out to examine the trailer court premises in order to prepare his bid. He rode around the area in a car. He saw what looked like gravel in the roadbeds although he did not get out of the car to conduct a more thorough inspection of the soils. Joe Longoria did not see any peat nor did he inquire of Mr. Lewis what type of soil was under the surface fill. He did observe that there was some earthwork being done in the trailer court, and he assumed from this that the excavation and backfilling of the roadbeds would be done by others prior to and independent of the paving obligation. At no point in the record is there any indication that Mr. Lewis intentionally concealed any information relating to the condition of the premises, composition of the soil, etc.
The contract entered into was drafted by Joe Longoria on a standard Anchorage Asphalt form. The bid proposal read as follows :
Install A. C. paving on new road and repair paving on existing roads with 2"
A. C.
mix. The subgrade will be prepared by us and paved for $2.50 per square yard. The estimated area to be paved is 18,586 square yards. Actual field measurements will determine the total amount of this contract upon completion of work. We will provide fundamental
engineering for $500.00. In all cases the unit price will prevail.
This was followed by a brief section stating certain guarantees and making certain disclaimers.
All material is guaranteed to be as specified. All work is to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays [are] beyond our control. Owner to carry fire, tornado and other necessary insurance. Our workers are fully covered by Workmen’s Compensation Insurance.
Anchorage Asphalt performed the contract by shaping and compacting the existing fill that was in the designated roadways and then spreading two inches of asphalt directly on top of the fill material. The total contract price based on surface area paved came to $57,052.50. Lewis made the initial down payment of $10,000 on September 1969 and five monthly installments of $4,000 each (reduced from $5,000 per month by agreement of the parties) in October, November and December of 1969 and February and April of 1970. This totaled $30,000 leaving a balance of more than $27,000.
Mr. Lewis claimed that minor defects and deficiencies began to appear in the pavement some three to four weeks after the completion of the streets. Although he was outside the State for much of the winter of 1969-70, he was kept advised of the worsening situation by his manager, Fred Sampson. Lewis directed the manager to contact Anchorage Asphalt and tell someone to come out to see what could be done. The wife of the manager made this telephone call, but she was told that there was no guarantee on the roads.
Of the seven streets paved by Anchorage Asphalt (four new streets and the three old ones which were repaved), the three northernmost new streets suffered the most rapid deterioration over the course of the first year. Portions of these streets settled causing a roller-coaster effect. This settlement interfered with proper drainage and caused ponding in the lower areas which would freeze during the night. Potholes, cracks and alligatoring
also appeared. At that time, the one other new street and the three older ones exhibited only minor defects. However, by the time this case came up for trial in July 1973, the pavement on these four streets too had begun to break up. Lewis estimated that these streets were a 30 to 50 percent failure whereas the three northerly streets were a total loss and would have to be completely rebuilt. Unlike the three northerly streets where the basic problem was a settlement leading to roller-coastering,
the
primary defects in the remaining streets were cracks and holes, not sinking.
Anchorage Asphalt’s position at the trial was basically that the term “prepare sub-grade” did not encompass the laying of a crushed rock or gravel subgrade. It asserted that the asphalt used was not defective, and it denied the existence of any implied warranty of the roads other than as to the quality of the materials used. It further denied any duty on its part to warn the defendant of the potential for failure due to the inadequacy of the subgrade material.
Lewis argued that there were express and implied warranties that the work would be done in a workmanlike manner which included placing a layer of gravel under the asphalt if necessary for a properly built subgrade.
At the conclusion of the trial, Judge Ka-lamarides, sitting without a jury, found,
inter alia,
that there was in fact an uneven settling or roller-coaster effect, alligator-ing, potholes and breaking up of the surface of portions of the roads. The failure was attributed to moisture in the subgrade that caused the road surfaces to heave and settle unevenly as a result of freezing and thawing action, and the saturation of the glacial till material that was basically used as a subgrade. The paving laid down was of high quality, and the failure of the roads was not the fault of Anchorage Asphalt. The judge found that Lewis knew of the conditions of the soils underlying the roads and failed to advise Anchorage Asphalt as to those conditions and that Lewis had a duty to so advise Anchorage Asphalt. Judgment was awarded in favor of Anchorage Asphalt in the amount of the balance due under the contract plus interest and against Lewis on his counterclaim.
Lewis has appealed contending, basically, that the court erred:
1. By not finding that the contractual provision, to “prepare the subgrade”, required that Anchorage Asphalt do whatever was necessary to see to it that there was a proper subgrade before paving over it, and
2. By not finding that Anchorage Asphalt had breached its express and implied warranties to do a “workmanlike job in accordance with standard practices”.
II
PREPARATION OF THE SUBGRADE The bid prepared by Anchorage Asphalt and accepted by Lewis provided that “the subgrade will be prepared by us and paved for $2.50 per square yard”. The failure of the streets was attributed to the nature of the subgrade. Lewis contends that the phrase “the subgrade will be prepared by
us” should be given the interpretation that Anchorage Asphalt had a duty to do whatever was necessary to see to it that there was an adequate subgrade “going as deep as necessary to accomplish the job”. On the other hand, Anchorage Asphalt argues that the language referred only to shaping and compacting the existing surface, that is scraping the existing roads smooth with a grader, shaping them so as to achieve drainage and compacting them before paving.
Although extensive evidence was submitted without objection as to the intent of the parties, the objects sought to be accomplished and the surrounding circumstances with reference to the phrase “the subgrade will be prepared by us”, Lewis now takes the position that the language is unambiguous and should be interpreted “objectively” without regard to that testimony. Although the term “subgrade” appears to have a well-recognized meaning pertaining to whatever is below the surface of the pavement, the issue in this case is what is meant by “preparing” it. Does it require excavation and placing a layer of an alternate subgrade if the contractor perceives the necessity for a more suitable material? On this point the experts were divided. Mr. Galliet, testifying on behalf of Lewis, believed the term included doing whatever was necessary to insure an acceptable paving job. Anchorage Asphalt’s expert, Mr. Beyer, believed that preparing the subgrade did not mean providing the subgrade material (e. g. a layer of gravel, etc.). It involved only shaping and compacting whatever material was there.
We find that the term is subject to varying interpretations. The trial judge accepted the interpretation advocated by Anchorage Asphalt and its expert. He made this decision by resolving the conflicts in the testimony of the experts and of the parties. Where interpretation of a written instrument turns on the acceptance of extrinsic evidence, the process of weighing such evidence should be for the trier of fact.
That such questions are for the trier of fact is especially true where the interpretation of a technical term is involved. The Supreme Court of Nebraska has held:
Where a technical term is used in a contract, and expert witnesses differ as to its meaning and what it implies, and the evidence relating thereto is in conflict, then the matter becomes a question of fact for the jury.
Likewise, in United States v. Lewiston Lime Co.,
the court, in interpreting the phrase “costs of transportation and treatment” as it applied to a limestone quarry operation, stated:
The proper interpretation of ambiguous contractual provisions is a mixed question of fact and law. The factual issues include the meaning of the terms asserted to have technical, trade meanings.
We conclude that the trial court’s interpretation of the words “the subgrade will be prepared by us” to mean shaping and compacting the existing material constitutes a finding of fact dependent upon the weight given to the conflicting extrinsic evidence. We cannot set aside that finding since it is not clearly erroneous.
III
WARRANTIES
Before discussing Lewis’ contention that Anchorage Asphalt breached its express and implied warranties, we must decide whether that issue is properly before this court. Anchorage Asphalt asserts that Lewis failed to specify the warranty question in its statement of points on the appeal as required by Alaska R.App.P. 9(e).
Admittedly, the words “express or implied warranty” do not appear, in the appellant’s statement of points on appeal. However, Points 6 and 12 assert that the trial court erred in finding that the subgrade was properly prepared by the plaintiff in accordance with the “requirements of the written contract” and the “express contractual requirements”. These phrases certainly include the express warranty provisions which were requirements of the contract. Furthermore, to hold that there has been a waiver as to the implied terms would require an overly narrow reading of Appellate Rule 9(e) since such terms, having been purposefully written into the contract by judicial decision, should be of the same stature as express terms written into the contract by the parties.
The purpose of Appellate Rule 9(e) is to have the appellant concisely outline what he considers to be potential sources of error constituting the bases for the appeal. This enables the appellee to designate additional portions of the record and transcript as may be deemed necessary and furnishes the appellate court with a statement of the issues. It does not require an elaboration of the legal theories on which the appeal is based.
Orbeck v. Wheeler Construction Co.
cited by Anchorage Asphalt is distinguishable from the instant case for there the appellant failed to file
any
statement of points on appeal.
Since the rule was totally ignored, and, there being no plain error, we found it proper to dismiss the appeal, stating:
This court is not inclined to cut off rights of appellate review because of some failure on the part of a litigant to comply with the rules, if to do so would work surprise or injustice or would result in countenancing plain error apparent on the face of the record. However, we must also remain mindful of the fact that the rules are designed to facilitate business and to assure an orderly procedure on appellate review and should therefore be enforced by this court.
The court’s interest in orderly appellate procedure is inapplicable to a case where the party has filed a statement in which broader language (e. g. breach of contract) includes the narrower issue actually briefed (e. g. breach of a warranty arising from the contract). Therefore, while it would have been preferable had the statement of points been more specific, the issues concerning both express and implied warranties are properly before the court.
Turning to those warranties, we • note that the contract, drafted by Anchorage Asphalt and signed by the parties, includes the following express warranty:
All material is guaranteed to be as specified. All work is to be completed in a
workmanlike manner according to standard practices.
Furthermore, it is well settled that, in building or construction contracts whenever someone holds himself out to be specially qualified to do a particular type of work, there is an implied warranty that the work will be done in a workmanlike manner, and that the resulting building, product, etc. will be reasonably fit for its intended use.
Thus, there was also an implied warranty to perform the contract in a workmanlike manner which was virtually coextensive with the express warranty cited above.
The scope of these warranties, however, is directly related to the scope of the duties and obligations imposed on the parties by their contract.
One of the main thrusts of Lewis’ argument has been disposed of by our holding that the trial court’s finding that the requirement to prepare the subgrade encompasses only grading, compacting and shaping the subgrade material. Lewis contends that preparation of the subgrade in a workmanlike manner would have involved placing a layer of more suitable subgrade material under the asphalt. This issue depends upon whether or not Anchorage Asphalt was obligated to do more than it did with regard to the sub-grade. And we have held that the trial court’s finding as to that requirement was not clearly erroneous.
There is no dispute as to the quality of the asphalt used on the streets. Although there was some issue as to the adequacy of the compaction of the subgrade, the trial court held directly that Anchorage Asphalt was not responsible for the deterioration of the streets and, therefore, indirectly that the preparation of the subgrade, including its compaction, had been performed in a workmanlike manner. While the evidence was in conflict as to the compaction, we cannot say that the court’s findings were clearly erroneous.
Similarly, Lewis’ argument that this was an “end result” contract
and that the final product was defective is de
pendent upon the designation of the “end result” agreed to by the parties to the contract. As interpreted by the trial court, the contract required preparation of the subgrade by grading, compacting and shaping, and placing on it a suitable asphalt paving. The trial court found that Anchorage Asphalt properly performed those duties and that the failure was not attributable to improper performance of those contractual duties. The contract as interpreted by the trial court did not call for the entire construction of the streets including possible excavation of peat and placement of fill, prior to the preparation of the subgrade and placement of the paving. The trial court did not clearly err in finding that Anchorage Asphalt physically accomplished the work it had agreed to perform.
We find more substance in the contention that Anchorage Asphalt breached its contract to complete its work in a workmanlike manner according to standard practices, by virtue of its failure to warn Lewis that a suitable result could not be obtained by placing the paving on the glacial till material covering the peat.
All of the expert testimony was to the effect that it was not standard practice to place paving directly on a frost susceptible material such as glacial till without use of a gravel base.
Moreover, it was undisputed that Anchorage Asphalt gave no warning that the paving was apt to fail if placed directly on the glacial till. In that regard, it appeared to be the position of the company that there was no duty to warn. As stated by the company’s vice-president: “If a man wants to pay me $2.50 a square yard for putting it [paving] in mudholes, I will, yes. If it’s within reason.”
The trial court did not pass on this issue as the judge placed the affirmative duty on Mr. Lewis to inform Anchorage Asphalt that the existing fill was composed of glacial till covering peat. Anchorage Asphalt, a recognized expert in paving, apparently made no inquiry of Mr. Lewis as to the nature of the fill or subsurface, nor is there any evidence that its representatives attempted to make any independent investigation (soil testing). Finally, there is nothing in the record that even implies that Lewis had intentionally concealed the underlying soil conditions of his trailer court.
Indeed, one is hard put to imagine any conceivable advantage which might accrue to the defendant by such behavior. Of course, nondisclosure of unfavorable soil conditions might hold down the bid estimates as long as the negotiations were held at a distance by telephone. However, the plaintiff sent at least two of its owner-representatives to the site before drawing up its bid, and these men were free to question Lewis and make any tests they felt necessary. The paving contractors were experts presumably, and there was no need for them to assume facts or operate in the dark concerning information they felt relevant to the successful performance of the contract.
Under these circumstances, we know of no authority that would place an affirmative duty on the owner to inform the plaintiff of the fact that the fill was composed of glacial till and covered a peat base. In Morrison-Knudsen Co., Inc., v. State,
we held that the State of Alaska
had no duty to inform a dredging contractor of facts coming to the knowledge of the State’s officials indicating that the method of dredging which the contractor stated he intended to use was not feasible. We stated:
We read these cases as establishing the following test for imposing a duty to disclose upon the state: did the state occupy so uniquely-favored a position with regard to the information at issue that no ordinary bidder in the plaintiff’s position could reasonably acquire that information without resort to the State ? Where resort to the state is the only reasonable avenue for acquiring the information, the state must disclose it, and may not claim as a defense either the contractor’s failure to make an independent request or exculpatory language in the contract documents.
“There has been no proof of fraud in any aspect of the case.” In this connection we note that subsequent to the negotiated contract and after M-K was informed of the first Gorton report M-K engaged Gorton to supervise exploration for the purpose of determining whether hydraulic dredging was feasible. We think M-K could easily have conducted equally extensive research on its own, and was not dependent on the state as the only reasonable avenue for acquiring that information. Accordingly, we hold that the state did not breach its duty to appellant in failing to disclose information it had received from the other bidders on the project,
While
Morrison-Knudsen
involved a public contract, we see no reason why a different standard should be applied here. Anchorage Asphalt with its expertise could easily have ascertained the nature of the fill material and subsurface conditions. At the very least, it could have inquired of Mr. Lewis. We conclude that the trial court erred in holding that, in the absence of any intentional deception. Mr. Lewis had a duty to volunteer information as to the contents of the fill and underlying soil.
Having reached this conclusion, we must decide whether Anchorage Asphalt had a duty to warn of the likelihood of failure of the paving under its agreement to perform the work in a workmanlike manner according to standard practices. We discussed such a duty in a footnote to our opinion in Nordin Constr. Co. v. City of Nome
stating:
Such notice [of design defects] is generally required to be given the owner or the architect by the contractor where the latter has reason to believe the plans are defective, in order to protect the con
tractor from liability for deficiencies caused by such defects.
Of similar import is the holding of Rubin v. Coles,
a case involving a contract to build an extension to a building. The contractor followed the specifications, but since the extended foundation was built on loose filled soil, it began to buckle within two months of completion, and the structure was condemned by the city within two years. The court held:
It has been repeatedly held that, even though he be bound to follow fixed plans . and specifications, the contractor owes the duty to examine such plans and judge of their sufficiency; that he is bound to discover defects that are reasonably discoverable or patent; and, where he knows or had reason to believe that the plans are defective, and follows them without pointing out such defects to the owner or architect, he is not entitled to recover if the building proves insufficient because of such defects.
Thus, the contractor is required to bring his expertise into play and to notify even an architect (expert) of reasonably discoverable defects.
In the converse situation, Ridley Investment Co. v. Croll
involves a contractor who had undertaken to construct a building according to plans and specifications submitted by the owner and who notified the owner of soft soil conditions discovered during construction. The contractor was held not to be liable for the cost of repairing a floor which subsequently settled because he had notified the owner of the need for additional piling for both walls and floors, but the owner had authorized additional support only for the walls.
These cases involved “plans and specifications contracts”. There would appear to be even more reason to impose this duty upon a contractor of an “end result” contract if the owner is calling for an end product on a site or under circumstances which that contractor knows or should know are bound to lead to failure. This would further the policy which strives to avoid wasted effort and material whenever possible. Therefore, we hold that this duty to inform the owner, regardless of his personal expertise, of potential defects in his project which come to the contractor’s knowledge or should come to his knowledge is an essential element of performing any contract in a workmanlike manner according to acceptable standards.
By this, we are not implying that a subcontractor has a duty to warn of defects in other parts of the project unless the defects are such as would likely cause the subcontractor’s work to fail, and further are of a nature to place the subcontractor on notice of their exis
tence. Both the case law referred to above and policy considerations dictate such a result.
The evidence was undisputed that placing paving directly on frost susceptible material was not in accordance with workmanlike standards since the result would be the precise type of failure of the paved surface which occurred here. If Anchorage Asphalt knew or reasonably should have known of the subsurface conditions, it had a duty to warn Mr. Lewis and is liable for the damages resulting from such failure to warn.
Having been warned, if Mr. Lewis then insisted that it was the contractor’s duty to provide the gravel layer under the terms of the contract, the dispute could have been settled or litigated before the paving was applied, and the wasteful and unnecessary losses avoided. If Mr. Lewis accepted as his the obligation to provide the additional materials but declined to do so, the contractor would have been absolved.
The record is not clear as to whether Anchorage Asphalt may be charged with knowledge of the subsurface conditions. The trier of fact could find that as paving experts, they should have known the difference between an actual gravel base and glacial till that may look like gravel to the uninformed eye. The trial court may possibly be able to take the judicial notice of the high likelihood of peat lying beneath the surface in the area involved. On the other hand, there was some testimony to the effect that at least on the vice-president’s initial cursory inspection, the fill material looked like gravel, and that he did not observe the peat. We, therefore, find it necessary to remand the case to the superior court for a determination of whether Anchorage Asphalt through its representatives knew or reasonably should have known that paving placed on the subsurface was likely to fail.
Remanded.