Appeal from the Circuit Court of LaSalle county; the Hon.
HOWARD C. RYAN, Judge, presiding. Affirmed in part, reversed in
part and cause remanded.
JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified October 7, 1959.
Trompeter Construction Company, a corporation, brought this action in the Circuit Court of LaSalle County against Norman P. Higby, doing business as Indian Head Syndicate Trust, and The Aetna Casualty and Surety Company to recover damages for an alleged breach of contract. The defendants answered and Higby filed a counterclaim. Replies were filed and the issues made by the pleadings were submitted to a jury. At the conclusion of the evidence offered on behalf of the plaintiff and counterclaimant motions for an instructed verdict for the defendants and for the counter-defendant were granted and from appropriate judgments rendered upon the verdicts so returned, plaintiff and counterclaimant appeal, following the overruling of their several post-trial motions.
The record discloses that on August 22, 1952, plaintiff entered into a contract with the State of Illinois, whereby it agreed to construct a highway 3,697 feet in length south of the City of LaSalle. This contract required the plaintiff to remove 56,164 cubic yards of dump material, consisting of junk and garbage at a unit price of 68¢ a cubic yard, and also required the removal, by plaintiff of 98,006 cubic yards of unsuitable earth material, consisting of muck encountered below the level of the present surface at a price of 78¢ per cubic yard.
On October 15, 1952, plaintiff entered into a sub-contract with Higby. This subcontract made reference to the contract between plaintiff and the State of Illinois and recited that Higby desired to supply and operate an hydraulic dredging outfit to remove certain materials classed either as "dump material" or "unsuitable earth material," as set forth in plaintiff's contract with the state and proposed to perform hydraulic dredging and to provide and furnish all of the labor, machinery, plant equipment and means of construction, necessary tools, expendable equipment, insurance, superintendence and all utility and transportation services necessary to perform and complete in a workmanlike manner the hydraulic dredging in accordance with the plans and specifications prepared by the State of Illinois.
This subcontract, after the foregoing recitals, then provided that in consideration of the matters hereinafter set forth, it was mutually agreed that the materials included in the words "dump removal" or "unsuitable earth removal" (as modified by paragraph 2) shall be removed to the lines and grades as set forth in the plans, specifications and special provisions of the contract with the State of Illinois and are to be deposited in such locations outside the limits of the areas to be excavated that the company can reach with equipment for moving discharge pipe. The agreement then continues: "In the event the locations selected for such deposits exceed 1000 feet from the dredge, Higby shall be obliged to furnish at his expenses piping for the first 1000 feet and shall pay 55% of the rental cost of any needed additional pipe."
The contract then provided:
"2. It is expressly understood between both parties that the dredging operation undertaken herein includes only removal of materials up to and including four (4) inches in diameter or dimension on one side, and that all materials in excess of such dimension or any obstructions whatsoever to the dredging operation are to be removed expeditiously as the dredging operation progresses, by the Company and at its expense, provided the Company is given notice of the existence of such material by Higby, so as not to delay or hinder the effective operation of the dredge.
"3. The company agrees that it will furnish, at its own expense, such labor and equipment as is required to move that portion of the discharge lines outside the limits of the removal area.
"4. All expenses in connection with the above work, other than that mentioned in the preceding paragraphs 2 and 3, are to be borne by Higby.
"5. Preparation of the site for efficient hydraulic dredging and preparation of the disposal area and effective access to the work areas of the dredging operation, including ramps and roads, are to be provided by and at the expense of the Company.
"6. The company agrees to pay Higby as follows: The sum of Five Thousand One Hundred Fifty Dollars ($5,150.00) when above hydraulic unit is on the job, said payment to be made in the following manner: The sum of Three Thousand Dollars ($3,000.00) when the barge or pontoon sections are placed on the job, and the balance when all other equipment needed to make a working dredge is on the job and in successful operation. In addition to the above payments, when the hydraulic dredge is put in operation, the Company agrees to pay Higby the sum of Fifty Dollars ($50.00) per hour for each hour of dredging operation that said dredging outfit removes a minimum of one hundred ten (110) cubic yards per hour of the above mentioned materials included in the words "dump removal" or "unsuitable earth removal" as designated in the plans and specifications heretofore referred to as modified by preceding paragraph 2, plus a compensation for waiting time as hereinafter specified. Measurement of the materials to be used as a basis for payment shall be taken over a period of twenty (20) hours of operation, minimum, and averaged over the time consumed in the measurement period. If the material removed does not equal the minimum guarantee of capacity, the Company shall pay that pro rata share of the materials actually pumped, at the agreed upon rate.
"7. If the dredge is delayed in its routine dredging operation by failure of the Company to remove oversize materials and obstructions, after notice to the Company of the existence of such material by Higby, the Company agrees to pay Higby for such delays so occasioned at the rate of Twenty Dollars ($20.00) per hour; provided, however, under-water obstructions which are not visible and may clog or hinder efficient operation are not to be considered as delays occasioned by the Company.
"8. It is further agreed that the Company will guarantee Higby a minimum of four hundred forty hours of operation at the above stipulated Fifty Dollars ($50.00) per hour, a total of Twenty-two Thousand Dollars ($22,000.00). Except for time lost due to delays which are occasioned by the Company, during which dredging cannot proceed, such guarantee shall not be effective unless four hundred forty (440) hours of operation are completed on or ...