Mulgrew-Boyce Co. v. County of Freeborn

Lewis, J. [Respondent, having been the successful contractor for the building of a ditch at 12.95 cents per cubic yard upon plans and speci [7] fixations issued by the county of Freeborn, brought this action to reform the contract to phange the number of yards as estimated by the engineer to the actual amount excavated. The trial court found that the profile map was erroneous, in that certain perpendicular measurements from the base line of the ditch and the surface of the soil were incorrectly measured; that as a result of such errors in measurements the amount of yardage to be removed, in order to make the ditch available and to accomplish the purpose for which it was being constructed, was 46,718.5, instead of 43,626.4 cubic yards; that the mistake was mutual — and ordered judgment for the correction of the contract to correspond with the facts, and that re-spondent recover the sum $402.44. The evidence tends to prove that the engineer made mistakes in estimating the amount of yardage to be excavated in the different stations. The grade line, or bottom, of the ditch was correct, and to make the ditch available to do the work the excavation had to be made to that line. The actual amount excavated showed up the engineer’s error in his estimate, and, as it was undoubtedly a mistake in calculation, there can be no reason why the facts should not be made to appear. 2. The county cannot escape liability for the payment of the actual amount excavated, on the ground that all of its acts, and the acts of its officials, were done in the exercise of governmental functions, and that the remedy, if any, is on the engineer’s bond. Appellant has misapprehended the purpose of this action. The purpose is not to hold the county liable for the negligence of the engineer, but is an action to make the “estimate” comply with the facts. Both parties assumed that to be true which was not true, and it is not necessary to determine whether the engineer was a public officer for whose acts the county would be liable. The county is only primarily liable for the cost' of constructing such ditches, and the expense is ultimately assessed against the lands benefited. This is not an action to recover for extra services, as was the case in Bowler v. County of Renville, 105 Minn. 26, 116 N. W. 1028. 3. Appellant calls attention to the provision of section 14, c. 230, Laws 1905, known as the “ditch law,” which reads: “And no bid [8] shall be entertained which exceeds more than thirty (30) per cent, [of] the estimated cost of the construction, of the part of said work covered by said bid. '* * *” The bid in question was as follows : “We, the undersigned, will construct ditch No. 17 according to plans and specifications for 12.95 cents per cubic yard for excavation, using what is styled a dry-land machine, and commence work in September of this year.” This bid was accepted, and the work was performed thereunder. The plans established the base line, and in order to have a ditch which would do the work it was necessary to excavate to that grade line, so that it would carry away the water. No mistake was made in the plans. The engineer’s estimate of cubic yards was not the basis of the bid. The mistake was in the estimate of yards to be removed to carry out the plans. The bid was 12.95 cents per cubic yard for the amount of yardage necessary to excavate, in order to construct the ditch according to the plans and specifications. Whatever “thirty (30) per cent, of the estimated cost of the construction,” etc., may mean, it has no application to the facts of this case, where the “estimate,” so. called, was clearly erroneous. Affirmed.