Foley Bros. v. County of St. Louis

Holt, J. The controversy is concerning the classification of the materials moved by plaintiffs in the construction of the Fond du Lac-Wren-shall road, in St. Louis county. There is no dispute as to the quantity moved, which was 120,752 cubic yards. The contract provides for classification in these words: “Excavation shall include all materials of whatever nature encountered, which shall be classified as follows: “Earth shall include all sand, clay, gravel and other materials of every description, as found, which are not included in the following classification for loose and solid rock. “Loose rock shall include all slate, shale or other rock which cannot be plowed with a ten-inch road plow and four horse team but which can be quarried or loosened with a pick without blasting even though the contractor may'resort to blasting to facilitate the work; also all detached rock or boulders measuring not more than -J cubic yard each. “Solid rock shall include all rock in masses, which cannot be loosened with a pick, also all detached rock or boulders measuring not less than cubic yard each.” The dispute is this: The court found that out of the materials moved there were 8,481 cubic yards of “loose rock”, and 11,090 cubic yards of “solid rock”. Defendant contends there were only 6,900 cubic yards of “loose rock” and 192 cubic yards of “solid rock”. The price for moving the “earth” was 62 cents, the “loose rock” $1.10, and the “solid rock” $2.25 per cubic yard. We are all agreed that the learned trial court correctly determined the quantity of material coming under the classification of “loose .rock”. Defendant went on the theory that, no matter how [322] close the boulders lay, if, when dug out and removed, the ground could be plowed, that which was so plowed should go as “earth”, and the clean boulders only should be classified as “loose rock”. The court applied the test specified in the contract thus: If the ground was so permeated with boulders, slate, shale or other rock that it could not be plowed with a ten-inch plow and a four-horse team, the whole mass should be classified as “loose rock” to the depth that such implowability persisted. Defendant’s chief engineer admitted that when the boulders were so close that it was impracticable to plow the mass, the whole thereof should take the classification “loose rock”. That means, the stuff filling the interstices between the boulders whether of earth, clay or sand is to be included and measured with the boulders.'' This was right. The trial court found that 10,898 cubic yards of a very hard substance, composed of silica and clay, which could neither be practically plowed or picked and had to be blasted, should be classified as “solid rock”. The Chief Justice and Justice Quinn are of the opinion that the court was in ■ error, and that it should have been placed in the first or residuary class called “earth”. Justice Dibell and the writer are of the opinion that the trial court was correct in its classification. Both sides have fully argued their views to their associates without a resultant change of view. The finding of the trial court is therefore sustained on a division of opinion. It is unnecessary to state the individual views of the 'Court. They carry no weight. No precedent is made. There is no opinion in which to concur and no decision from'Which to dissent. The remaining assignment of error affecting the amount of recovery relates to the interest allowed. The board of county commissioners 'accepted the work as completed August 10, 1921, and the court gave interest from that date. Since a claim cannot be paid under the provisions of section 674, GL S. 1913, until 15 days after it is allowed by the board, defendant argues that it does not draw interest until the expiration 'of that time. When the work called for by the contract was completed and accepted as such by the board, the money earned was due and payable. There was no occasion to present a claim therefor to the board for any action. [323] Merz v. County of Wright, 114 Minn. 448, 131 N. W. 635. Interest was properly computed by the court. gome rulings during the trial are challenged. Defendant offered to show the total amount of the cost of explosives used in the job to be $926.74. Upon objection the evidence was excluded. Error is assigned. At most this related to a collateral matter. There was no offer to show that it would have required the purchase of more worth of explosives if there had been 10,898 cubic yards of sandstone, or limestone formation in the job instead of that amount of the hard sand clay the court ■ classified as “solid rock”. It may be admitted that the extent to which explosives were used in the actual work bore somewhat upon the hardness of the material encountered and the difficulty of moving the same; but, after all, it related to collateral matters as to which the trial court has a large discretion whether to investigate or not. The same holds true as to the cost of moving material with plow, pick and scraper at the tests made subsequent to the completion of the contract. The result is that the order must be affirmed. Mr. Justice gtone did not sit, having been of counsel in the court below.