Opinion
Rehearing Denied April 2, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 915
Inman, Flynn & Coffee, Robert D. Inman, Denver, for plaintiff in error.
Dean D. Young, Belmore T. Martin, Denver, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
Plaintiff in error, Metropolitan Denver Sewage Disposal District No. 1, was the defendant in the trial court and will be referred to herein as defendant or Metro. Defendant in error was the plaintiff in the original action and will be referred to herein as plaintiff or contractor. Trial was to the court.
Plaintiff and defendant entered into a contract drawn up by Metro, whereby plaintiff was to construct a sewer line. The contract was a unit price contract wherein the contractor bid the total amount on each segment of the contract on a total and on a unit price basis. One of these unit items was special backfill material, the payment for which is the subject of dispute in this case.
The contract provided that special backfill material was to be used to refill the trench of the sewer line under certain circumstances provided in the contract. The estimate shown in the contract for this item was 16,000 tons. The contract provided for payment to the contractor of $5.00 per ton. This estimate was computed under the assumption that a vertical trench would be dug. (It is noted that the quantities set forth in the contract were not absolutely binding. Their purpose was merely to facilitate the comparison of proposals as indicated by s II--16 of the contract.) The contractor actually used 20.478 tons to complete the job. Metro paid for only 15,112 tons and refused to pay for the remaining 5.366 tons. Metro claimed the excess was incurred because the contractor sloped the trench walls contrary to the terms of the contract. The contractor sued Metro to recover the cost of 5,366 tons of special backfill material. The trial court entered a judgment for $26,830.00, plus $4,908.17 in interest against Metro from which it appeals.
Metro contends that the provisions of the contract required that the contractor dig a trench with only vertical walls and that if the walls would not support themselves, the contractor would have to support the trench walls artifically at his enpense.
s 5.04 of the contract states:
'Trench walls shall be as nearly vertical as practicable from the bottom to the top of the excavation. Except on paved or improved streets, where soil conditions warrant sloping or benching the trench walls, the sloping or benching shall terminate at a depth not less than one foot above the top of the pipe barrel. From that point down the trench walls shall be vertical.'
Part VI of the contract provided that the contractor was to pay for all shoring or support work.
It was undisputed that at a point early in construction, difficulties were experienced by the contractor in supporting the trench walls due to unstable soil conditions and underground water. In a letter to the contractor, Metro stated that it did not consider the trench safe and insisted that this condition be remedied. The contractor responded with a letter the same day which said in part:
'When it was obvious that our shoring was inadequate, we started sloping the ditch in accordance with paragraph 5.04 of our contract documents.'
According to the record, Metro did not react to this letter with any claim that the contractor was misinterpreting said paragraph 5.04, i.e. that paragraph 5.04 did not give the contractor any authority to slope the trench walls. The interpretation of this paragraph of the contract was raised only after completion of the contract and request for payment was made.
This letter from the contractor further stated that it was expected that the use of shores could be resumed the following day. However, the testimony of one of the contractor's witnesses indicated that the unfavorable soil conditions not only persisted, but became worse as the project progressed. Consequently, sloping of the trench was continued where necessary. Shoring was also intermittently employed.
Defendant assigns as error that the findings of fact entered by the trial court are wholly unsupported by the evidence. The record disclosed that Metro was aware that the contractor was sloping the trench and that at no time did Metro request the contractor to cease doing so. There was conflicting evidence presented as to whether Metro had notified the contractor during construction that it would not pay for the extra backfill material being used. Where there is sufficient evidence to sustain the trial court's findings, the reviewing court, on writ of error, is bound by the trial court's determination. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537. We find that there was sufficient evidence to sustain the trial court's findings of fact in this case.
As a second assignment of error, Metro claims that the contract was not properly construed by the trial court. Metro claims that s 5.04 of the contract as quoted above, prevents sloping of the trench under any conditions on paved or improved streets; whereas the contractor claims that the exception clause permits sloping when it is necessary because of soil conditions. We agree with the contractor's interpretation of the contract. However, even if the contract is ambiguous or in the event that language of doubtful meaning is used, or when it appears indefinite or uncertain to a degree, the rule of construction is that the contract shall be interpreted most strongly against the party who drew it. Gardner v. City of Englewood, 131 Colo. 210, 282 P.2d 1084, 1085; Platte Valley Ditch & Reservoir Co. v. H. C. Lallier Construction & Engineering Co., 91 Colo. 317, 14 P.2d 1079.
We conclude that the trial court properly construed the contract between the parties. The judgment is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.