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Spitalny v. Tanner Const. Co.

Supreme Court of Arizona

March 9, 1953

SPITALNY et ux.
v.
TANNER CONST. CO.

Page 441

[75 Ariz. 193] Leslie C. Hardy, of Phoenix, for appellants.

Robert & Price, of Phoenix, for appellee.

PHELPS, Justice.

This is an action by Tanner Construction Company, a corporation, plaintiff-appellee, versue Sam Spitalny and wife, defendants-appellants, for the recovery of the reasonable value of services rendered defendants by plaintiff in leveling certain land for them near Blythe, California, in 1948. Judgment was rendered for plaintiff and defendants appeal. The parties will be referred to hereafter as plaintiff and defendants respectively.

The facts are that defendants were the owners of certain desert land located near Blythe, California, lying within the Palo Verde Irrigation District. Plaintiff Tanner Construction Company was engaged in highway construction and in leveling land for agricultural purposes and possessed adequate equipment for the conduct of such business. The corporation was licensed to do business in the states of Arizona and California.

In February 1948 plaintiff and defendants entered into a written contract whereby plaintiff agreed to level a 40-acre tract of defendants' land located in section 24, Riverside County, California, and to employ in doing such work one D-8 tractor with bulldozer fully operated and maintained at a charge of $10 per hour, and two D-8 tractors wtth 20-yard carry-alls at a cost of $11 each per hour. Defendants under the terms of the contract were to furnish all grade stakes of cuts and fills for all clearing done in advance and pay plaintiff for its work every 15 days from the day work started. Plaintiff agreed to begin work not later than February 10 of that year.

Plaintiff leveled the 40 acres and was paid in full therefor. Defendants were pleased with the work and suggested to plaintiff that they extend that terms of the written agreement to cover other land belonging to defendants in that area to which plaintiff assented. Plaintiff proceeded to level other land for defendants under such oral agreement.

Plaintiff next leveled a 14-acre tract adjoining the 40 acres above mentioned and upon completion of the work upon the 14-acre tract plaintiff was directed to next level a 55-acre tract which it did 'fairly well' according to the testimony of Mr. Spitalny with the exception of perhaps 'a [75 Ariz. 194] little touching-up' which he stated was 'a minor operation.'

The fourth tract upon which plaintiff worked had 62 acres in it and was also in section 24. The portion plaintiff attempted to level contained only 42 acres, however. This tract was never completely leveled. This was admitted by both R. C. Tanner and Lyle Fisher, his foreman in charge of the work. The portion thereof which was not finished consisted of a strip along the north side of the 42-acre tract consisting of two to two and a half acres, a part of which was approximately two feet higher than the remainder of the tract.

According to the testimony of plaintiff's witnesses who were employed in the engineering office of the Palo Verde Irrigation District each of these tracts of land were balanced so that the cuts approximately equaled the fills. In other words,

Page 442

so that the high places when cut down to the proper level as indicated by the stakes placed thereon by the engineering department of the irrigation district, the dirt removed therefrom was sufficient to fill the low places in the tract to the same level. Defendant Spitalny and his witness C. E. Thacker who did a great deal of leveling for Mr. Spitalny testified that this surplusage of soil on the north end of the 42-acre tract was due to plaintiff's failure to follow the survey made by the engineers of the irrigation district, that instead of doing so, plaintiff hauled dirt from an 80-acre tract belonging to defendants adjoining the 42 acres on the south and filled up a low corner on the south side of the 42-acre tract. Defendants claimed this was done to save the long haul from the high strip on the north side of the tract. Plaintiff R. C. Tanner and his foreman Lyle Fisher denied that any dirt was hauled on to the 42-acre tract from the 80 acres south thereof or from any other tract. Defendant Spitalny also testified that in removing the dirt from the adjoining lands, plaintiff dug a hole in the 80-acre tract covering approximately 10 acres one and one-half to two and a half feet in depth. In this he was also supported by the witness Thacker who testified that he saw plaintiff's employees at different times removing dirt from the hole and conveying it to the 42-acre tract. Spitalny and Thacker testified that it cost defendants approximately $10,000 to fill the hole from which they claimed plaintiff had removed the dirt on the 80-acre tract. Defendants claimed that they employed Thacker and Waldron to cut down the high strip on the north side of the tract and distribute it over the remainder of the 42 acres raising the level thereof five to six inches at a cost of $3000, but the evidence is indefinite as to the cost of doing this.

Plaintiff had begun work on the 80-acre tract south of the 42 acres above mentioned and had removed some of the brush and was leveling 20 acres thereof by cut and fill work when it withdrew its equipment from the job and rescinded the contract because[75 Ariz. 195] of defendants' failure to pay in accordance with its terms.

The evidence shows that plaintiff began work around February 14 and that defendants made their first payment to plaintiff on March 6, 1948 in the sum of $3000. The next payment was on March 31 in the sum of $2,652. These two payments constituted payment in full for leveling the first 40-acre tract. The next payment was made by defendants on April 20 in the sum of $2500. At that time, before the $2500 payment was credited by plaintiff, defendants were indebted to plaintiff in the sum of $6,615.73. The next payment made by defendants was on May 17 in the sum of $5000 and left a balance of some $6000 unpaid. At that time plaintiff informed defendants that he expected the whole indebtedness to be paid and was informed by defendant Sam Spitalny that he would bring him a check within a few days. No check having been received by plaintiff previous to July 1, plaintiff on that date telephoned defendants at their home and informed Mrs. Spitalny that it was short of funds and unless further payments were made it could not continue the work but that it would give defendants ten days more and if payments were not made by that time plaintiff would take its equipment off the work. The notice given cures any previous waiver by plaintiff of payment on the date provided in the contract. No payments were made by defendants.

At the time plaintiff quit work on defendants' land and withdrew its equipment to Phoenix it had neither finished leveling the 42-acre tract according to survey lines of the irrigation district engineers nor had it completed leveling the 20 acres it had begun on the 80-acre tract. Plaintiff sent statements to defendants for the balance due amounting to $11,094.73 on a number of different occasions between the time it rescinded its contract with defendants and the date of the institution of this action.

Plaintiff in instituting its suit against defendants declared in its first count upon the written contract, and in the second court it set up the written contract haec verba but based its claim upon quantum meruit. The defendants answered the complaint and filed a counter-claim asking for

Page 443

damages against plaintiff, for loss of crops because of plaintiff's failure to level the land according to contract; for cost of finishing leveling such land and for filling the 10-acre hole on an adjoining tract made by plaintiff in leveling the 42-acre tract. During the course of the trial plaintiff dismissed its first cause of action ...


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