Rock Hill Asphalt & Construction Co. v. State Highway Commission

TOM J. STUBBS, Special Judge. Defendant-appellant prosecutes this appeal from a final judgment of the Circuit Court of Cole County, Missouri, in favor of plaintiff-respondent in the amount of $17,-'836. Jurisdiction of this court is invoked because of the amount in dispute. Constitution of Missouri, 1945, Article V, Section 3, V.A.M.S. We will refer to the parties as they were designated in the court below. The case was tried to the court without a jury and will be reviewed upon the law and the evidence. Rule 73.01(d), Rules of Civil Procedure, V.A.M.R. A written contract (plaintiff’s Exhibit No. 1) was entered into between plaintiff and defendant by the terms of which plaintiff undertook the construction of highway projects in Lafayette and Saline Counties, Missouri, which consisted of resurfacing outer roadways of portions of Route 1-70 with bituminous material. The contract was awarded to plaintiff after defendant had advertised for and received sealed bids, plaintiff, of course, being the successful bidder. The contract was awarded on a so-called “unit price basis,” that is, the various items of work to be done were specified and identified in defendant’s advertised proposals. A unit price with respect to each was bid by plaintiff, for example, “Binder (MC-1) thirteen cents per gallon.” To arrive at the total compensation defendant agreed to pay and plaintiff agreed to accept the number of “units” which actually went into the construction project was to be multiplied by the unit prices bid. Plaintiff does not complain that defendant failed to keep its part of the bargain with respect to this formula. Quite to the contrary, plaintiff contends it should be paid $17,836 in excess of the amount it contracted to accept for the work done because of unseasonable weather and because of an unforeseen condition of the surface of the outer roadways it contracted to resurface, it was obliged to incur expense for labor and equipment in that amount which it had not anticipated when it estimated and successfully bid the job. The difficulty with plaintiff’s position is that it assumed the hazard of unseasonable weather and assumed the obligation to become fully informed with respect to all conditions which might affect the execution of the construction project it undertook to perform. Defendant’s proposals, as well as Missouri Standard Specifications for State Roads, Materials, Bridges, Culverts and Incidental Structures, Edition of 1961, were specifically incorporated in and are a part of the contract plaintiff and defendant executed. An examination of the entire contract brings into focus its following provisions: “The contractor (plaintiff) further agrees that he is fully informed regarding all of the conditions affecting the work to be done the labor and materials to be fur [812] nished for the completion of this contract, and that his information was secured by personal investigation and research and not from any estimates of the Commission (defendant) . “All provisions of Section 4.2 relating to contract plan changes are by the engineer or Commission only, and the weather, physical or other conditions other than direct intentional change of plans are not considered to be an alteration as contemplated herein.” The record in this case does not support any contention, if indeed there be one, that any “contract plan changes” were made by defendant. It is true that as the work progressed two “change orders” were made by defendant increasing the number of “units” of MC-3 binder to be used in the project. Section 3 of each contained the statement: “Settlement for cost of the above change to be made at contract unit prices, except as noted.” No exceptions were noted. Each “change order” contained the signature of the plaintiff’s agent under the words: “To the Resident Engineer: The terms of settlement as outlined in paragraph 3 above, are hereby agreed to.” A fair construction of the contract compels the conclusion that the hazard of unfavorable weather conditions was one of the burdens assumed by plaintiff when it estimated and successfully bid the construction proposals of defendant. The same must be said of the condition of the surface of the outer roadways plaintiff contracted to resurface. It is our conclusion from the record in this case that the plaintiff simply underestimated the cost of the work it contracted to perform and it is not within the prerogatives of this court to rewrite the contract the plaintiff voluntarily entered into. Would anyone seriously contend that had weather conditions been more favorable than anticipated and had the condition of the surface of the outer roadways been such as to reduce plaintiff’s labor and equipment expense, the defendant would have been entitled to a reduction in the amount it had contracted to pay plaintiff for the work performed? The plaintiff was in no way compelled to enter into the undertaking it did; however, having done so, the plaintiff is bound by the plain terms and provisions of its written contract. The result we are compelled to reach in this case is fully supported by the following Missouri appellate authority: Sager v. State Highway Commission, 349 Mo. 341, 160 S.W.2d 757; Sandy Hites Co. v. State Highway Commission, 347 Mo. 954, 149 S. W.2d 828; Spitcaufsky v. State Highway Commission, 349 Mo. 117, 159 S.W.2d 647. Cases cited by plaintiff-respondent either have no application to the facts disclosed by the record in this case or are clearly distinguishable. The judgment is reversed and this cause is remanded to the trial court with directions to enter judgment in favor of the defendant. HENLEY, C. J., and DONNELLY, SEILER, MORGAN, and HOLMAN, JJ., concur. FINCH, J., concurs in result in separate concurring opinion filed. BRADY, Special Judge, concurs in result and concurs in separate concurring opinion of FINCH, J. STORCKMAN, J., not sitting.