Woolman Construction Co. v. Cochrane

213 N.W. 455, 238 Mich. 206, 1926 Mich. LEXIS 932

• Court: Michigan Supreme Court
• Decided: June 7, 1926
• Status: Published

Opinions

On Rehearing.

Snow, J.

The cause was first argued and submitted at the April, 1926, term of this court, and decided June 7th following. See 235 Mich. 117. A rehearing was granted, and it was again argued and submitted at the October, 1926, term. Our former opinion renders unnecessary a restatement of the facts, or the discussion of more than one feature of the case, in which respect only such opinion is modified.

We there said:

“We are constrained to hold that plaintiff is entitled to the compensation as agreed upon between it and the commissioners up to the amount it would have been entitled to under the contract, had it blasted the rock. While it has been asserted by plaintiff that the amount agreed upon was less than the cost would have been under the terms of the contract for blasting, there is no satisfactory evidence as to the correctness of this assertion.” p. 123.

Also:

“But the allowance and payment by the defendants to plaintiff of an amount satisfactory to all parties must be held as determining it, and defendants may not now question their act of voluntary payment of this amount, although the question of whether or not it exceeded the amount that would have been allowed for blasting might not have been considered by them.” p. 123.

It is now contended by the defendant Cochrane that he failed to offer proof bearing upon this proposition because of the intimation from the trial court of its intention to direct a verdict in his favor. Under the circumstances, we feel such proof should now be permitted.

We also, in our former opinion, held that solid rock, which would ordinarily require blasting, was in fact encountered 'by .the contractor, but that because of unusual conditions blasting could not be resorted to, and that picking the rock to pieces by the dipper' became necessary. We think, upon the question of whether or not the rock was of such character as to ordinarily require blasting, proof should also be now permitted. Three items, therefore, are to be de termined by the court or jury, from competent evidence, as questions of fact, viz.:

(1) Was the rock in question of such a character as would ordinarily, without the existence of unusual conditions, have been blasted under the terms and conditions of the original agreement between the parties ?

(2) What amount would be due plaintiff for the removal of this rock, removed as it was, in the manner and upon the terms agreed upon between it and the drain commissioners after the work on the drain had begun?

(3) What amount would be due plaintiff under the terms of the written contract had the rock been blasted?

If question No. 1 is answered in the affirmative, plaintiff is entitled to recover the amount so determined under item No. 2, provided it is not in excess of the amount found under item No. 3. If it should exceed such an amount, plaintiff will be limited in its recovery thereto, as in no event can plaintiff recover for a greater sum than it would have been entitled to had the rock been blasted as provided- by the original written contract.

The case will be remanded for a new trial for the sole and only purpose of determining the above named questions of fact. In all other respects we reaffirm the conclusions reached in the original opinion.

Sharpe, C. J., and Bird, Fellows, and McDonald, JJ., concurred with Snow, J.