Summary
In Blassingame, the rock quantity was initially estimated, but not properly envisioned or predicted by either party, but the court held that the contractor assumed whatever risk was involved.
Summary of this case from L-J, Inc. v. S.C. State Highway DeptOpinion
12597
February 19, 1929.
Before BONHAM, J., Greenville, November, 1927. Decree reversed and Master's report adopted.
Action by J.T. Blassingame against Greenville County. Decree for plaintiff reversing the report of a Master in defendant's favor, and defendant appeals.
The decree of the trial Court and the exceptions were as follows:
DECREE"The plaintiff brought his action by the service of summons and complaint February 16, 1925, seeking the aid of the Court to rescind a certain contract into which he had entered with the State Highway Department for the construction of a road in Greenville County. By the first cause of action he asks that the contract be rescinded and that he have judgment for a stated sum as compensation for work done by him in excess of the requirement of the contract; by the second cause of action he seeks to rescind the contract, and to recover for the excess work done, on the basis of quantum meruit. The claim of the right of rescission is predicated on the allegations that in the making of the contract there was a mistake on the part of both parties to the contract — a mutual mistake — as to the quantity of solid rock to be removed; and but for this mistake of fact the contract would not have been made. To this complaint the defendant interposed a demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action. The points of the demurrer are thus epitomized; that the complaint and the contract between the parties show; (1) the prices to be paid to the plaintiff by the County for the work to be performed; (2) that the estimates made were submitted to the plaintiff and accepted by him; (3) that the plaintiff has been paid what he was due at the time of the commencement of the suit, which payments he has retained; (4) that the facts stated in the complaint do not show a case of mutual mistake; (5) that the contract upon which the suit is based is clear and without ambiguity. The Circuit Court sustained the demurrer on the ground, that `The contract entered into between the plaintiff and the defendant is explicit and without ambiguity; that the parties are bound by its terms.' From this order the plaintiff appealed, which appeal resulted in an opinion of the Supreme Court reversing the order sustaining the demurrer. Thereupon, by consent of counsel, the case was referred to the Master to take the testimony, and to hear and determine the issues of fact and law. He has taken his testimony and has filed his report, and the matter is now before me on exceptions, by plaintiff, to that report.
"A statement of the occurrences out of which this litigation grows is necessary to the orderly understanding of the controversy.
"In 1922 the State Highway Department advertised for bids for the construction of a road in Greenville County which is known by several names, but which I shall call the Brevard Road, since that is the title given it in the contract, where it is designated as being `Between North Carolina State line and Point 3/4 of a mile North of Cleveland, project No. 87, length 15.258 miles.'
"The advertisement for bids required that they be made by units. In the aggregate of units bid Blassingame, plaintiff herein, had the lowest bid, closely followed by Jordan. The bid of Blassingame on solid rock was $1.50; that of Jordan on the same unit was $1.00. When it came to awarding and executing the contract, the Chief Engineer of the Highway Department, who had charge of awarding and making the contract, called to the attention of Blassingame that if the solid rock to be excavated and removed should exceed the amount of the estimates upon which the bids were predicated, to-wit, 12,716 cubic yards, by more than the 20% increase allowed by the contract it would make his bid higher than that of Jordan. Whereupon, it was agreed and inserted in the contract that if the solid rock ran over the estimate and the 20% allowance of increase, the contractor should be paid for such excess at the rate of $0.75 per cubic yard. And herein lies the gist of this controversy.
"The plaintiff alleges that when the addition to the contract was made neither he nor Mr. Moorefield, Chief Engineer, acting for the Highway Department and Greenville County, had any idea that the quantity of solid rock to be moved would exceed the estimate of 12,716 and 20% increase allowance by more than a small margin; that as a matter of fact it did exceed it by a large quantity, or amount, estimated by the plaintiff to be about 49,000 cubic yards, and by the engineers to be about 29,000 cubic yards; that the plaintiff had had large experience as a road contractor; that he relied on the estimates made by the Engineers of the Highway Department, and had rarely ever known solid rock on a mountain road, as this was, to exceed the estimates by more than a small margin. He alleges further that if he and Mr. Moorefield had any idea that there would be this large excess amount of solid rock the contract would not have been made.
"The Master holds that the plaintiff has not made out a case of mutual mistake, and that he has been paid the full amount found to be due him by the estimates of the engineers, and recommends that the complaint be dismissed.
"In disposing of the appeal from the order of the Circuit Judge sustaining the demurrer to the complaint, the Supreme Court said:
"`It appears to us that the Circuit Judge based his holding entirely upon the fact that the written agreement before him was so clear that there could be no doubt as to its terms, and that the parties were expressly bound thereby. Evidently, he overlooked the main theory of the complaint and the most important allegation thereof, namely, that the very contract, which the Court construed, was alleged by the plaintiff to have been made by a mutual mistake of the parties.'
"`Even if the words of the contract are clear and without ambiguity, when it is alleged, as is done in this case, that the instrument was executed as a result of a mutual mistake of the contracting parties with reference to a material matter, and that the agreement would not have been entered into except for that mutual mistake, the party, so alleging, is entitled to have the question raised by him submitted to the proper tribunal for determination.' Citing the case of Jumper v. Queen Mab Lumber Co., 115 S.C. 459, 106 S.E., 473.
"The plain deduction from this language is that if the plaintiff establishes by the evidence the allegations of his complaint he will have made out a case of mutual mistake. The Master finds as matter of fact that the plaintiff has not made out, by the evidence a case of mutual mistake and hence, for that reason, is not entitled to rescission of contract. The exceptions to the report challenge the correctness of that finding, and the conclusion of law based on it. This is the primary question to be determined.
"What is such mutual mistake as will entitle one to ask the rescission of a contract? Many authorities were cited to the Court in the able and learned arguments of the attorneys for plaintiff and defendant, but I apprehend that the law thereabout is fairly plain, and does not need the buttress of many authorities. Indeed, the Supreme Court in this case had sufficiently answered the question I have asked, in this language:
"`When it is alleged, as is done in this case, that the instrument was executed as a result of a mutual mistake of the contracting parties with reference to a material matter, and that the agreement would not have been entered into except for that mutual mistake, the party, so alleging, is entitled to have the question raised by him submitted to the proper tribunal for determination.'
"In delivering the opinion of the Court, concurred in by all the Justices, Mr. Justice Blease cites with approval the case of Jumper v. Queen Mab Lumber Co., 115 S.C. 459, 106 S.E., 473. In that case Mr. Justice Cothran delivering the unanimous opinion of the Court took occasion to set forth clearly the distinction between the right to reform a contract and the right to rescind one. The right of reformation arises when the contract, written or oral, does not contain the terms upon which the parties had agreed. Something has been inserted in the instrument, through error, fraud, mistake, or otherwise which was not agreed upon by the parties; or, something is omitted from the instrument upon which the parties had agreed. The right of rescission arises when the parties to a contract have been mutually mistaken in regard to a matter of fact pertinent to the subject matter of the contract, and if the mistake had been known to the parties at the time of the execution of the contract it would not have been executed.
"I find this lucid definition of mutual mistake in 6 R. C.L., at page 621:
"`If an agreement is induced by a mistake common to both parties, without which mistake the agreement would not have been made and the mistake was in respect of the subject matter of the contract, the agreement is inoperative and void. This rule is based upon the idea that in such case no contract has been consummated.'
"Was there, in the making of the contract involved in this case, a mistake, mutual to the contracting parties, upon a matter of fact, which fact is related to the subject matter of the contract, which mutual mistake induced the contract, and but for which it would not have been entered into? The evidence taken by the Master is voluminous and contradictory. In it there are expressions, from the witnesses for the plaintiff as from those of defendant, which taken alone seem to negative the idea of mutual mistake. It is not practicable to review the whole of this evidence, nor even to give a resume of it. I have read it with care, and sought to analyze it, from which analysis I find the following facts to be proved: When the bids for the construction of this road were opened, it was found that the bid of the plaintiff was, in the aggregate of the unit bids, the lowest. That on the unit of solid rock the bid of Jordan, $1.00 per cubic yard, was lower than that of plaintiff at $1.50 per cubic yard. That the estimates upon which the bids were made called for 12,716 cubic yards, with an allowance of 20% increase. When the parties came together to execute the contract it was realized that if the solid rock to be moved should exceed this estimate, the bid of plaintiff would be, in the aggregate of unit prices, higher than that of Jordan. The Chief Engineer of the Highway Department, representing that department and the defendant, Greenville County, preferred plaintiff as contractor rather than Jordan, because of his long experience in such work, his reputation for efficient performance of such contracts, his better equipment and his stronger financial standing. Thereupon it was agreed and it was inserted in the contract, that if the solid rock exceeded the estimate plaintiff should be paid for such excess at the rate of $0.75 per cubic yard. That none of the parties to the contract had any idea that the solid rock to be moved would exceed, by an appreciable margin, the estimates of the engineers, and that both parties believed the estimates to be approximately correct. A reference to some of the testimony is helpful.
"At page 3 of the evidence of plaintiff as reported by the Master, this is found:
"`Now, on making your bid, putting in your bid, did you rely upon the accuracy of these estimates of the Highway Engineers?
"`A. Always have.'
"At page 6 of the reported evidence he said:
"`A. Mr. Moorefield says: Well, if this runs over 12,000 cubic yards, it will make you a higher bidder than Jordan. He says, "how about making this rock, if it runs over 12,000 yards, the estimate, $0.75?" I says, I have never known of an estimate on solid rock on mountains to run over. I believe I will just do that.
"`Q. What did Mr. Moorefield say at that time as to his opinion?
"`A. He thought so, too.'
"At page 7, this occurs:
"`Q. What was it that induced you and Mr. Moorefield, both, at that time, to make this change in your bid and contract?
"`A. You see, Jordan was $1.00, mine was $1.50. Well, if it run over the estimate just a little it would make Jordan low bidder. Well, as it stood I was low bidder, and Mr. Moorefield thought better, and I did too, to make it $0.75 from that fact that neither one of us expected it to run over but a small amount.
"`Q. Well, did both of you believe that those estimates were correct?
"`A. Approximately so. * * *
"`Q. Would you have changed your bid at all if you had any idea that the estimates had anything like more than that?
"`A. Certainly not.'
"That Mr. Moorefield, who stands very high in his profession, and as a man of integrity and character, entertains these same views is, I think, certain by his own testimony. In a letter written from his office, which was not signed nor mailed, but upon which he was examined at the reference, this occurs, as coming from Mr. Moorefield:
"`I am sure that none of us had any idea that it would be exceeded by any such amount as the 28,687.5 shown on the November 20th, 1924, monthly estimate, and I am sure that Mr. Blassingame did not anticipate the serious consequences that his offer might entail.'
"Mr. Moorefield was asked further:
"`Q. Isn't that your belief now, just as you stated here, that Mr. Blassingame didn't have any idea of what the consequences of that thing was?
"`A. I don't believe he anticipated any such overrun. I did not.'
"At page 83 of Mr. Moorefield's reported testimony this occurs: Plaintiff's attorney was quoting from a letter written by Mr. Moorefield to plaintiff's attorneys:
"`Q. Certainly we had no intention of being unfair to the contractor, and if we had any reason to believe that the overrun in rock quantities would have amounted to anything like 200% we would not have been willing to make an award without getting new bids. Now that's right, isn't it? You stand by that?
"`A. Oh, yes.
"`Q. If you had known at that time that instead of being 12,716 cubic yards, or a reasonable quantity like that, you had understood that there was 41,000, nearly 42,000 cubic yards of rock, you would not have asked Mr. Blassingame to sign that special provision, would you?
"`A. We would not have proposed it.
"`Q. And you would not have signed that contract either, would you, because you would have thought it unjust?
"`A. We would not have proposed that change to begin with.
"`Q. So that contract would never have been made if you all had known the truth?
"`A. If we had known that the quantity of rock would have run that much.'
"It seems to me that this evidence discloses that both of the contracting parties in making the change in the contract, which provided compensation at $0.75 per cubic yard for excess of solid rock over the estimates, never contemplated, never had any idea that the quantity of solid rock would exceed the estimates by more than a small margin; that if they had anticipated the large excess which has developed that they would not have entered into the contract. It will not be argued that this matter was not related to the subject-matter of the contract; the thing about which the parties were contracting.
"In my opinion the plaintiff has proved a typical case of a contract made in mutual mistake. And the Master was in error in finding to the contrary.
"The Master has not decided the questions, whether the plaintiff has by his laches lost the right of rescission of the contract; nor whether he has waived such right; nor whether the settlements of plaintiff each month with the County Supervisor were adjudications of his claims, and final, because not appealed from. In other words, the contention is, that having presented his claims to the County Supervisor he is bound by the action of that official and cannot now maintain an action in this Court.
"Has plaintiff, by his laches, lost his right to maintain this action for the rescission of the contract?
"I take it that there will be no argument over the statement of the rule in case where rescission is sought, viz.: that one must exercise his right of rescission in a reasonable time after discovering the error, fraud or mutual mistake which furnishes the ground for rescission.
"I conceive that it is impossible to lay down a general rule defining what is `reasonable time,' in every case. It is thus stated in the case of Roberts v. James, 83 N.J. Law, 492, 85 A., 244, Ann. Cas., 1914-B, 859:
"`What is a reasonable time * * * to rescind * * * depends on the circumstances of each * * * case,' and `unless the situation of the other party has changed to his detriment' the rescinding party may wait `until action is brought against him.'
"The rule is thus stated in 13 C.J., 615, 616:
"`A right to rescind must be exercised promptly on discovery of the facts from which it arises, the requisite diligence being governed by the circumstances of the particular case.'
"An interesting case is that of Bostwick v. Ins. Co., 116 Wis. 392, 89 N.W., 538, 92 N.W., 246, which is also found reported in 65 L.R.A., 705. From it I take this statement:
"`We must not overlook the distinction between an action at law based on rescission for fraud — an action where rescission necessarily precedes the existence of the cause of action — and an action in Equity for rescission. In the former case rescission is effected by the act of the party injured. In the latter he seeks the aid of a Court of Equity to effect rescission.'
"Discussing the question of the conduct of the party seeking rescission, as indicative of a purpose to rescind or not to rescind, this is said in 6 R.C.L., page 933;
"`Where subsequent acts are relied on in a case where fraud is clearly established (I add, and mutual mistake), it is said the act must stand upon the clearest evidence, and must amount to a clear election not to rescind. If what is done is merely for the purpose of saving one from further loss, without any purpose to give up whatever rights he may have, either at law or in equity to rescind, the right of rescission will not be affected.' (Italics mine.)
"In the light of these expressions of the law let us examine the facts and circumstances in this case in order to determine whether the plaintiff, by laches, or by his conduct has lost the right to ask for rescission by the Court of Equity of this contract.
"If it is argued that by completing the contract plaintiff elected not to stand upon the right of rescission it must be borne in mind that Greenville County has not suffered by his action in completing the contract. Indeed, it has been benefited. It has a fine highway completed at great loss to the plaintiff. If plaintiff had of his own motion rescinded the contract by laying down the work of constructing the road, the County would have been put to the necessity of reletting the contract, possibly at a higher cost than the bid of plaintiff, at much delay, and certainly would have had to pay to some other contractor for completing the work, at least as much as the amount it now refuses to pay plaintiff for doing it. Defendant has received an enormous benefit and plaintiff has suffered an enormous loss by reason of the mutual mistake of the parties. Defendant cannot complain that it cannot be put in statu quo. It is in better position than it would be if plaintiff had abandoned the work. It is legally in statu quo. I quote from the able opinion of the Massachusetts Supreme Judicial Court in the case of Long v. Athol, 196 Mass. 497, 82 N.E., 665, 17 L.R.A. (N.S.), 96:
"`But the defendants contend that the cancellation of this contract, and the consequent necessity of paying upon a quantum meruit for what has been done by the plaintiffs, prevents them in another way from being put in statu quo. The result of the work done by the plaintiffs was to show that the necessary excavation was more difficult and expensive than was anticipated; and the total expense of the work has been increased accordingly. The result of this is that a new contract for the same work could not have been let on so favorable terms for the defendants as if this fact had not been brought to light; and so the defendants say that they neither have been, nor could be, put into as favorable a condition as that which they at first occupied. But it seems to us that this amounts only to saying that the real facts which have become known have operated to deprive them of an inequitable advantage which they formerly enjoyed over prospective contractors for this work, by reason of the general ignorance of the character of the soil and the difficulty of excavation in it. It was perhaps unavoidable, while these matters remained unknown, that one of the parties should derive a certain degree of advantage or of detriment from that fact; the loss of that advantage to the one and the removal of that detriment to the other is not a change of which either party has the right to complain. It does not in our judgment prevent the defendants from being put in statu quo.'
"The striking parallel between that case and the one at bar will be even more apparent upon a perusal of the whole opinion in that case. From the same case this is taken:
"`If the contract is set aside and the defendants are held to pay the plaintiffs for the fair value of the materials and labor furnished by the latter, and no more, we do not see why the defendants are not in legal sense put in statu quo.'
"It is urged in argument for defendant that plaintiff discovered soon after striking solid rock that the quantity would largely exceed the estimates; that he should then have rescinded the contract or procured an adjustment of the question of extra compensation.
"It must be borne in mind that the contractor anticipated some increase of solid rock over the estimate and the allowance of 20%. It is in evidence from plaintiff and defendant's witnesses that plaintiff had no means of knowing what this increase would be. It is a reasonable inference that he continued the work in the expectation that he would reach the end of the solid rock before he has much exceeded the anticipated increase and allowance. It is in evidence that when he realized the extent to which the solid rock would overrun what he and Mr. Moorefield calculated it would be he made protest and was promised an adjustment. Mr. Moorefield himself so testifies. The following is taken from the transcript of the evidence sent up by the Master. Mr. Moorefield being on cross examination:
"`Q. Therefore, Captain, from this letter I will ask you if Mr. Blassingame some time before that had not had up with you the question of the adjustment of this matter?
"`A. Yes, he frequently discussed the adjustment with me.
"`Q. He had frequently discussed that with you?
"`A. Several times.
"`Q. And you had told him that you would recommend a proper adjustment, didn't you?
"`A. I don't recall that. I don't recall having told him that I would recommend any specific adjustment.'
"The fact that the plaintiff was discussing the question of adjustment with the Chief Engineer would seem to warrant the conclusion that he had made protest that the quantity of solid rock greatly exceeded that which he and the said Chief Engineer had in mind when the addition to the contract was made which provided for compensating for such excess at the rate of 75 cents the cubic yard.
"At page 94 of the reported testimony Mr. Moorefield is reported to have said:
"`Q. And you further said: These specifications have been enforced very rigidly and technically on you, and he (you) said: This has run away over our estimate. We took the liberty to reduce that price from $1.50 to 75 cents, and I think we have a right to put it back. Do you remember making that statement to him?
"`A. I don't remember the words I used, but I know I may have told him something similar to that, I told him I saw no reason why it would not be increased, since we had reduced it. * * *'
"Continuing he said:
"`A. I don't know about the original price. It seems to me that I suggested to Mr. Blassingame from $1.00 to $1.25 to increase it.
"`Q. You recall that Mr. Sloan in his letter of October 30th, at the close of Mr. Brown's report, recommended to you unequivocally that you settle with Mr. Bassingame on that basis?
"`A. I recall he made a recommendation of that kind.
"`Q. And you approved that, didn't you?
"`A. The letter that you put in evidence?
"`Q. Yes, sir, that you would approve his recommendation.
"`A. Yes, sir.
"`Q. Now, that was a good long time before that contract was completed?
"`A. Yes, sir.'
"I can deduce from this evidence but one conclusion, viz.: That the plaintiff some time before completing the contract had discovered that the solid rock would far exceed the estimate, and had made protest to the Chief Engineer, and other Engineers, and had been promised an adjustment; that the adjustment related not only to the complaint of the plaintiff that the resident engineers were not giving him, in their monthly estimates a correct statement, or estimate, of the quantity of rock moved that month, but it, also, related to the question of the compensation of plaintiff for the large excess of solid rock moved, at a price in excess of the 75 cents per cubic yard provided for in the amendment to the contract. The plaintiff testified that he continued the work after discovering that there would be a large excess of solid rock over the estimate, because he had been promised an adjustment, because everything he had was involved in the contract, and he was under a heavy bond; something like $53,000.00. This present action was begun before the work was completed. The summons and complaint were served in February, 1925, and the work was completed in June of that year. The fact that the contract has been completed has no bearing on the question.
"`It is not material whether the instrument is an executory or an executed agreement; nor is it material whether the proceeding is directly by bill to correct the mistake, or the mistake is set up in the answer by way of defense.' Page v. Higgins, Note 5 L.R.A., 153.
"I conclude, and so hold, that plaintiff has not lost his right to maintain this action for rescission because of any laches on his part in demanding a rescission.
"Has the plaintiff by his conduct and actions waived his right to demand rescission of the contract? Much that has been said in discussing the question of the alleged laches of the plaintiff as a bar to the action applies to this question of waiver and need not be repeated.
"`Waiver is the voluntary — the intentional — relinquishment of a known legal right.' State v. Board of Canvassers, 78 S.C. 471, 59 S.E., 145, 14 L.R.A. (N.S.), 850, 13 Ann. Cas., 1133; Davis v. Milady, 92 S.C. 142, 75 S.E., 363, Ann. Cas., 1914-B, 267; McCarty v. Piedmont Mut. Ins. Co., 81 S.C. 156, 62 S.E., 1, 18 L.R.A. (N.S.), 729.
"`Waiver is a mixed question of law and of fact. * * * It is only when the evidence admits of but one conclusion that waiver becomes a question of law.' Hollings v. Bankers' Union, 63 S.C. 197, 41 S.E., 90; Huestess v. Ins. Co., 88 S.C. 39, 70 S.E., 403.
"Defendants rely largely for proof of waiver of the inference which they deduce from the fact of acceptance by the plaintiff of the monthly estimates made by the engineers of the work, and the acceptance of payment therefor, and the receipts given therefor, and upon the acceptance by plaintiff of the final estimate, the payment thereupon and the receipt therefor. The plaintiff testified in regard to these estimates and payments: `They are not correct. I signed and told them at the time it was not correct.' Under date of May 27, 1926, Mr. Moorefield wrote to plaintiff's attorneys as follows:
"`I recall having told Mr. Blassingame that in my judgment his acceptance of our estimate would in no way prevent him from proving his claim for additional allowance.'
"Mr. Blassingame was asked:
"`Q. When you mentioned this matter what was it that Mr. Moorefield said?
"`A. I said, now Mr. Moorefield, I can't sign that estimate in full settlement on account of my suit. He told Sutton to endorse that on the estimate, but by some means he didn't do it, and I was surprised when the County Attorney brought up that question. It was not in there.'
"The engineers who made these estimates knew that the contractor disputed the correctness of these estimates as to quantity of rock as well as to the price allowed. Letters of Mr. Moorefield, Mr. Sloan and Mr. Brown prove it. They show also that these gentlemen were convinced of the justice of the plaintiff's claim, and advocated the settlement of it. It is immaterial that Blassingame may not have made any complaint to the County Supervisor, who issued the vouchers in settlement of monthly estimates made by the engineers. The County Supervisor was merely disbursing agent or officer in paying out the money furnished in part by the Federal Government, in part by the State and in part by the County. He was simply a ministerial officer and no protest Blassingame might have made to him would have been of any avail. The Supervisor had no power to alter the estimates or to change the rate of payment.
"The Contractor's complaints and protests were directed to those with whom the contract was made and they promised him redress.
"The opinion of the Supreme Court delivered by Mr. Justice Jones in the case of Griffith v. Newell, 69 S.C. 300, 48 S.E., 259, is pertinent to this question. The action was brought by Captain Griffith as superintendent of the State penitentiary to recover of A.T. Newell the price of the hire of certain convicts. Newell set up by way of offset that he had a contract with the directors of the penitentiary for the hire of twenty convicts a year for the space of three years; that he had never been furnished the full number of convicts for which his contracts called although he demanded them; that in consequence of the failure to furnish the full number of convicts he had been much hampered in his farming operations and had lost heavily. Plaintiff contended that by paying for the lesser number of convicts Newell had waived the provisions of the contract calling for twenty convicts. From judgment for the defendant, plaintiff appealed. In disposing of the question of waiver, Mr. Justice Jones said:
"`We may further say that, assuming the issue of waiver properly raised, we do not think the evidence proposed could have had any material bearing upon the question. The uncontradicted evidence was that Newell was constantly demanding the full number of convicts under his contract, and that the necessities of his farming operations compelled him to receive whatever number of convicts he could get. The fact that he paid for what he received while demanding his rights under the contract, would not justify an inference that he waived his rights' under the contract.
"That case is in striking analogy to the case I am considering. No inference should be drawn that plaintiff has waived his right of rescission because of his acceptance of the monthly and final estimates of the engineers. He was constantly demanding and was promised an adjustment. Aside from such inference there is no proof that he voluntarily and intentionally waived his right of rescission.
"Defendant's attorneys contend that the action of the County Supervisor in paying the amount found to be due by the monthly estimates made by the engineers is an adjudication of the claims so paid which has the effect of a judicial decision, which is final and conclusive unless reversed on appeal; that such action of the Supervisor can only be reviewed on appeal. Since the case of Jennings v. Abbeville County, 24 S.C. 543, it has been the law of this State that the County Commissioners in passing on claims against the County act in a judicial capacity, and the only way to review their action is by appeal to the Circuit Court. In that case the `claims' upon which the Board of County Commissioners act. Judicially spoken of as `county claims'; `ordinary County Claims.' In Tinsley v. Union County, 40 S.C. 276, 18 S.E., 794, they are spoken of as `county claims' which the Board of County Commissioners `audit.' In the case of Du Pre v. Lexington County, 90 S.C. 180, 73 S.E., 70, this occurs:
"`With respect to ordinary county claims this Court has often held that the county board acts judicially in passing upon them, and that the only method of review is by appeal to the Circuit Court.'
"Note the expression `ordinary county claims,' and `acts judicially in passing upon them.' These clearly indicate the class of claims in which the Court holds that the County Board has judicial powers, to wit, that class which the board `audits' or `passes upon.' Clearly the claims under review in the case before me do not belong in that class. The Supervisor does not audit them; he does not pass upon them; he simply pays them when they have been presented to him upon estimates of the engineers. The contract under which these monthly estimates arose and were made was not with the County alone, it was a Federal project, under the supervision and direction of the State Highway Department of South Carolina, to be paid for by the Federal Government, the State and the County. The contract was made by the Highway Department, on its forms, by its specifications, and that contract provides the manner of paying such claims. Section 71 provides that: `Monthly payments shall be made under this item in proportion to the work done as estimated by the engineers.' The County Supervisor received these estimates from the engineers and issued his check to pay them. He did `audit' them, he did not pass upon them; he had no power to change them in the slightest particular, nor to challenge their correctness; his was only the ministerial, the clerical duty of drawing the checks in payment. The Acts of Congress and the Road Laws of South Carolina take claims of this character out of the orbit of the judicial functions of the County Supervisor as they relate to ordinary County claims.
"I have a high regard for the opinion and judgment of the able Master who heard this case under reference, but I cannot concur in his findings and conclusions that plaintiff has failed to prove that there was a mutual mistake of the contracting parties in the contract under review. In my opinion, the evidence clearly establishes such mutual mistake. I am also satisfied that the plaintiff has not lost by laches nor waived by conduct or word his right of rescission. The Master does not determine what if any amount the plaintiff would be entitled to recover, if the contract be rescinded, nor shall I attempt to do so upon the case as it stands. Plaintiff may proceed as he may be advised to determine that question.
"It follows from the views hereinabove expressed that the exceptions to the report of the Master must be sustained; that his findings of fact and conclusions of law must be overruled; and that the report must be set aside.
"And it is so ordered."
EXCEPTIONS"I. Error of the Court in holding: `Plaintiff has proved a typical case of a contract made in mutual mistake, and the Master was in error in finding to the contrary.'
"Specification of error:
"It is submitted that the testimony conclusively shows: (1) That the parties intended to make the identical contract into which they entered; (2) that Blassingame agreed and intended to agree that the price for all rock excavation in excess of the Engineer's estimate of 12,716 cubic yards should be paid for at the rate of 75 cents per cubic yard; (3) that by the terms of the contract Blassingame took the risk of any such excess, whether great or small, without further qualification, except that such excess should be paid for at the unit price of 75 cents per cubic yard; (4) that the fact that the excess rock was much greater than either the Engineer or Blassingame anticipated, was one of the risks assumed by Blassingame, and is no ground for cancellation, modification or reformation of the contract.
"II. Error of the Court in holding: `If plaintiff had rescinded the contract by laying down the work of constructing the road, the County would have been put to the necessity of reletting the contract, possibly at a higher cost than the bid of plaintiff, and certainly would have had to pay to some other contractor, for completing the work, at least as much as the amount it now refuses to pay plaintiff for doing it.'
"Specification of error:
"It is submitted that this holding is purely speculative, and that the evidence does not show that the work could not have been relet to other contractors at approximately the price agreed to by Blassingame, to wit: 75 cents per cubic yard for all rock excavation in excess of 12,716 cubic yards.
"III. Error of the Court in holding: `It is a reasonable inference that he (Blassingame) continued the work in the expectation that he would reach the end of the solid rock before he had much exceeded the anticipated increase and allowance.'
"Specification of error:
"It is submitted that the uncontradicted testimony shows: (1) That Blassingame continued the work for practically a year after the solid rock excavation had exceeded the estimated amount by more than 100 per cent.; and that (2) during the period in which he was engaged in removing the rock, he made no complaint as to the price being paid for the excess rock, to wit: 75 cents per cubic yard.
"IV. Error of the Court in holding: `It is in evidence that when he (Blassingame) realized the extent to which the solid rock would exceed the amount which he and Mr. Moorefield calculated it would be, he made protest and was promised an adjustment. Mr. Moorefield himself so testified.'
"Specification of error:
"It is submitted that the uncontradicted testimony shows: (1) That Blassingame made no protest as to the price to be paid, and which was being paid him for the excess rock, until the rock excavation had practically been completed; and (2) that the adjustment promised by Moorefield related solely to the amount of rock excavation and not to the price to be paid therefor.
"V. Error of the Court in holding: `Plaintiff has not lost his right to maintain this action for rescission because of any laches on his part in demanding a rescission.'
"Specification of error:
"It is submitted that the uncontradicted testimony shows: (1) That beginning November, 1923, and continuing until the spring of 1925, Blassingame each month presented his claim for rock excavation on the basis of $1.50 per cubic yard up to 12,716 cubic yards, and 75 cents per cubic yard for all rock excavation in excess of 12,716 cubic yards; (2) that he swore to the correctness of the items set forth in each monthly estimate; (3) that he received payment each month on the basis of the unit prices set forth in the contract, without complaint; (4) that at the conclusion of the work he executed a receipt in full based upon the prices agreed to in the contract; and (5) his Honor erred in not holding that Blassingame waived any right which he might have had to rescind the contract or to insist upon reformation of the price.
"VI. Error of the Court in holding: `The Engineers, who made these estimates, knew that the contractor disputed the correctness of these estimates as to the quantity of rock, as well as to the price allowed. Letters of Mr. Moorefield, Mr. Sloan and Mr. Brown prove it.'
"Specification of error:
"It is submitted that the uncontradicted testimony shows: (1) That beginning November, 1923, and continuing until the spring of 1925, Blassingame each month presented his claim for rock excavation on the basis of $1.50 per cubic yard up to the estimated amount of 12,716 cubic yards, and 75 cents per cubic yard for all rock excavation in excess of 12,716 cubic yards, the unit price agreed to in the contract; (2) that without complaint as to the price he accepted payment each month upon the basis set forth in his claims and agreed to in the contract; (3) that he made no protest as to the price paid on account of rock excavation until a short time before the final estimate; and (4) that the only protest he made during the progress of the work was to the effect that the Engineers were not allowing him enough rock.
"VII. Error of the Court in failing to hold that the action of the County Supervisor in paying the amounts found to be due by the monthly estimates was an adjudication of the claims so paid.
"Specification of error:
"It is submitted that Blassingame presented each month his claim for work done under the contract upon the basis of $1.50 per cubic yard for rock excavation up to the estimated amount of 12,716 cubic yards, and 75 cents per cubic yard for all in excess of 12,716 cubic yards, and that the action of the County Supervisor in approving and allowing these claims was equivalent to an adjudication thereof and binding upon both Blassingame and the County, and his Honor erred in not so holding.
"VIII. Error of the Court in holding: `Defendant is in better position than it would be if plaintiff had abandoned the work.'
"Specification of error:
"It is submitted: (1) That this holding is merely speculative; (2) that the evidence does not show that the work might not have been relet at approximately the same prices agreed to by Blassingame.
"IX. Error of the Court in holding: `The fact that plaintiff was discussing the question of adjustment with the Chief Engineer would seem to warrant the conclusion that he made protest that the quantity of solid rock greatly exceeded that which he and the Chief Engineer had in mind when the addition to the contract was made, which provided for the compensation for such excess at the rate of 75 cents per cubic yard.'
"Specification of error:
"It is submitted that the testimony conclusively shows: (1) That Blassingame made no protest until the work was practically completed, that the amount of solid rock excavation had greatly exceeded the estimated amount; (2) that throughout the contract period Blassingame's complaints were directed solely toward securing larger estimates of rock.
"X. Error of the Court in holding: `That the plaintiff, some time before the completion of the contract, had discovered that the solid rock would far exceed the estimate, and had made protest to the Chief Engineer and the other Engineers, and had been promised an adjustment; that the adjustment related not only to the complaint of the plaintiff that the Resident Engineers were not giving him, in their monthly estimates, a correct statement or estimate of the quantity of rock removed that month, but it also related to the question of compensation of plaintiff for the large excess of solid rock removed at a price in excess of 75 cents per cubic yard, provided for in the amendment of the contract.'
"Specification of error:
"It is submitted the testimony conclusively shows that: (1) It was not until a short time before the final estimate that Blassingame made any complaint to the effect that the amount of solid rock excavation had exceeded the estimated amount and that the price therefor should be increased; (2) no promise was made by the Engineers or anyone else to adjust the prices agreed to in the contract.
"XI. Error of the Court in holding: `No inference should be drawn that plaintiff has waived his right of rescission because of his acceptance of the monthly and final estimates of the Engineers. He was constantly demanding and was promised an adjustment.'
"Specification of error:
"It is submitted that the testimony conclusively shows: (1) That plaintiff made no complaint as to the prices being paid for rock excavation until the work had practically been completed: (2) no promise was ever made by the Engineers or anyone else to adjust the prices named in the contract for rock excavation; (3) that for practically a year and a half, to-wit: from the beginning of work until same was practically completed, Blassingame presented each month a claim, sworn to by him as correct, setting forth the amount of rock excavation and the prices to be paid therefor, to-wit: $1.50 per cubic yard up to 12,716 cubic yards, and 75 cents per cubic yard for all in excess of 12,716 cubic yards; (4) that Blassingame received payment on these monthly estimates without protest as to the prices paid; (5) that the action of the County Supervisor in allowing and approving these monthly claims amounted to an adjudication of the same, binding upon both Blassingame and the County.
"XII. Error of the Court in holding: `It is immaterial that Blassingame may not have made any complaint to the County Supervisor, who issued the vouchers in settlement of monthly estimates. The County Supervisor was merely disbursing agent or officer in paying out the money furnished in part by the Federal Government, in part by the State, and in part by the County. He was merely a ministerial officer, and no protest that Blassingame might have made to him would have been of any value. The Supervisor had no power to alter the estimates or to change the rate of payment.'
"Specification of error:
"It is submitted: (1) That any payment in addition to the amount specified in the contract would have to be paid by the County; (2) that the County Supervisor represented the County in making the contract; (3) that the County Supervisor alone had the authority to consent to an amendment of the contract, and that any complaint relating to such matter, and particularly as to the prices stipulated in the contract, should have been submitted to him.
"XIII. Error of the Court in holding: `The contractor's complaints and protests were directed to those with whom the contract was made, and they promised him redress.'
"Specification of error:
"It is submitted that the testimony conclusively shows: (1) That Blassingame never at any time made any protest to the County Supervisor relative to the prices to be paid under the contract: (2) that the only protests made by Blassingame were to Moorefield, Chief Engineer; (3) Moorefield, the Chief Engineer, had no authority to make any change in the prices stipulated in the contract; (4) that no promise whatsoever was made by Mr. Moorefield or anyone else to adjust the prices named in the contract for rock excavation.
"XIV. Error of the Court in sustaining plaintiff's Exception No. 1 as to conclusions of fact, to-wit: `That the Master erred in finding that the lowest bid on the entire work was submitted by Mr. Jordan of Anderson, it being respectfully submitted that Chas. H. Moorefield, Highway Engineer, explicitly testified that, upon the alternate selected by the Highway Department, Mr. Blassingame, the plaintiff, was the actual low bidder, and said finding by the Master is a complete misstatement of fact as shown by the sworn testimony.'
"Specification of error:
"It is submitted that the uncontradicted testimony shows: (1) That the Engineers anticipated that the amount of rock excavation would exceed to some extent the estimated quantity of 12, 716 cubic yards; and (2) that, taking into consideration this anticipated excess, Jordan was the low bidder on the entire work.
"XV. Error of the Court in sustaining plaintiff's Exception No. 2 as to conclusions of fact, to-wit: `That the Master erred in finding that the plaintiff, in his anxiety to get the contract, changed his bid, it being submitted that the record absolutely fails to sustain this finding, which is a mere conclusion of defendant's attorneys adopted by the Master, it being further submitted that the testimony shows conclusively that the plaintiff was the actual low bidder on the alternate selected by the Highway Department as the best alternate, and was entitled to the contract on merit, and that the change in his bid was suggested entirely by the Highway officials.'
"Specification of error:
"It is submitted that the uncontradicted testimony shows: (1) That the parties anticipated that there would be rock excavation in excess of the estimated quantity; (2) that on the basis of rock excavation in excess of the estimated amount of 12,716 cubic yards, Jordan was low bidder; and (3) that, for the purpose of making Blassingame low bidder in order that he might be awarded the contract, there was added the special provision of 75 cents per cubic yard for all excess rock excavation.
"XVI. Error of the Court in sustaining plaintiff's Exception No. 3 as to conclusions of fact, to-wit: `That the Master erred in finding that the special provision in the contract was "made in contemplation of the uncertainty" as to quantity of rock, it being submitted that the only testimony upon this point was that it was made to cover the 20 per cent. excess which the specifications allowed, no one having the slightest idea that the rock quantity was anything like 42,000 cubic yards, and all parties to the contract honestly believed the estimates of the Engineers, that the rock quantity was 12,716 cubic yards, were reasonably accurate.'
"Specification of error:
"It is submitted that the uncontradicted testimony shows: (1) That both the Engineer and Blassingame anticipated that there would be rock excavation in excess of 20 per cent. of the estimated quantity; (2) that because of their belief that there would be an excess, the special provision of 75 cents per cubic yard was added in order that Blassingame might be low bidder; (3) under the terms of the contract Blassingame was bound to remove all solid rock in excess of 12,716 cubic yards at the rate of 75 cents per cubic yard; and (4) that both Blassingame and the Engineer intended that 75 cents per cubic yard should be paid for all rock excavation in excess of the estimated amount, and they both so testified.
"XVII. Error of the Court in sustaining plaintiff's Exception No. 4 as to conclusions of fact, to-wit: `That the Master erred in stating in his report (page 4) that plaintiff had accepted monthly estimates without objection, and finally, at the conclusion of the work, executed a receipt in full, whereas the Master should have held that both plaintiff and defendant expressly contracted and agreed that the acceptance of the final check would not in any way affect this particular claim.'
"Specification of error:
"It is submitted that the uncontradicted testimony shows: (1) That the plaintiff did present monthly claims for the rock excavation in excess of the estimated quantity of 12,716 cubic yards on the basis of 75 cents per cubic yard, and did accept payment on that basis without any complaint as to the price; and (2) that at the conclusion of the work he executed a receipt in full.
"XVIII. Error of the Court in sustaining plaintiff's Exception No. 5 as to conclusions of fact, to-wit: `That the Master erred in holding as a matter of fact that neither Mr. Blassingame nor the Engineers knew the actual amount of rock which would have to be removed, whereas the Master should have held that both parties testified that they clearly understood that the rock quantity to be excavated was approximately 12,716 cubic yards. That the Highway Engineer stated under oath that he believed the estimates were "reasonably accurate," and the Master should have held that the parties were contracting about a reasonable excess quantity of rock within the term "approximately correct."'
"Specification of error:
"It is submitted that the uncontradicted testimony shows that while neither Blassingame nor the Engineer knew the exact quantity of rock to be removed, both parties intended the special contract provision of 75 cents per cubic yard to apply to all rock excavation in excess of the estimated quantity of 12,716 cubic yards, whether the excess should prove to be great or small.
"XIX. Error of the Court in sustaining plaintiff's Exception No. 6 as to conclusions of fact, to-wit: `That the Master erred in finding as a matter of fact that the special provision for the excavation of solid rock at 75 cents per cubic yard was made to cover any excess which might occur, and that Blassingame took the risk of any enormous increase, whereas the Master should have found that the parties had in mind only a reasonable excess which might develop, the plaintiff believing that there would not be any excess, and the defendant's Engineers believing that the estimated quantity was reasonably correct, and neither the plaintiff nor the Highway Engineers had in mind any such enormous excess as actually developed; that the undisputed proof shows that they never thought of contracting as to any such amount of rock, and both reasonably believed that any excess would be within the terms "approximate." The Master should have concluded, as the most thoroughly established fact in the case, that the contract would never have been made had the truth been known, and erred in finding that there was not a mutual mistake.'
"Specification of error:
"It is submitted that the uncontradicted testimony shows: (1) That neither the Engineers nor Blassingame knew how much solid rock excavation there might be, and that realizing this fact, the special provision for payment at the rate of 75 cents per cubic yard was inserted for the purpose of taking care of this contingency, and they intended that 75 cents per cubic yard should be paid for all rock excess, whether such excess should prove to be great or small; (2) that it is purely a matter of speculation as to whether the contract would or would not have been entered into had the amount of solid rock excavation been known.
"XX. Error of the Court in sustaining plaintiff's Exception No. 1 as to conclusions of law, to-wit:
"`That the Master erred in holding that the contract, the terms of which are perfectly clear, provided for this very contingency by stipulating that the contractor should receive 75 cents per cubic yard for all rock excavation in excess of the estimated amount, this holding being error of law in that:
"`(a) The precise point has been passed upon by the Supreme Court, the demurrer having raised the exact question, and the decision of the highest Court in the State held that even if the contract was plain in its terms, yet if the contract was executed by reason of a mutual mistake, the parties would be entitled to relief.
"`(b) Both parties hereto absolutely repudiate the Master's holding in that they swore under oath that they had no such contingency in mind when they contracted. On the contrary, the State's highest officer and the plaintiff testified that they would never have made the contract had they known such a contingency might develop.
"`(c) The conclusion utterly ignores and overlooks the main theory of the plaintiff's case — the law of mutual mistake, which the Master seems not to have considered — that the very provision and the contract were entered into because of a mutual mistake of the parties as to a material fact; that the parties contemplated nothing more than a reasonable excess, and inserted the provision at the suggestion of the Highway Engineer in order to "balance" the bid.'
"Specification of error:
"(a) It is submitted that the decision on demurrer merely held that, for the purposes of the demurrer, the allegations of the complaint were to be liberally construed, and that plaintiff was entitled to have the question raised by him submitted to the proper tribunal. It is further submitted that the evidence fails to show that the contract was executed by reason of a mutual mistake in that the uncontradicted testimony shows: (1) That the parties intended to make the very contract which they did make; (2) that both Blassingame and Moorefield anticipated that there would be rock excavation in excess of the estimated quantity; and (3) that they intended that 75 cents per cubic yard should be paid and received for all rock excavation in excess of the estimated quantity, whether such excess should be great or small.
"(b) It is submitted that the fact that the outcome of a contract is different from that anticipated by the parties, does not make a case of mutual mistake, entitling the disappointed party to relief by way of rescission or reformation of the contract, especially where, as in this case, the contract expressly provided for uncertainties.
"(c) It is submitted that the uncontradicted testimony shows: (1) That the parties intended to make the identical contract into which they entered; (2) that they intended the special provision of 75 cents per cubic yard to cover all excess rock excavation, whether such excess should be great or small; (3) that under the terms of his contract, Blassingame assumed whatever risk was involved; (4) that had Blassingame desired a limitation upon his risk, he could have insisted upon such limitation at the time of making the contract; and (5) that having failed to do so, he cannot now call upon the Court to provide such limitation.
"XXI. Error of the Court in sustaining plaintiff's Exception No. 2 as to conclusions of law:
"`That the Master erred in holding as a matter of law that the plaintiff had not made out a case of mutual mistake, it being submitted that the overwhelming weight of the testimony clearly established a mistake mutual to both parties about a material fact which was the basis of the contract, in that:
"`(a) Plaintiff testified, without the slightest contradiction, that he relied upon the accuracy of the estimates of the Highway Engineers and believed they were correct.
"`(b) Charles H. Moorefield (one of the most honorable and competent officers the State has ever known) said under oath: "He had no way of ascertaining the exact quantity of rock, and was warranted in believing that our estimate was accurate within reasonable limits, and that he himself believed the estimates were reasonably accurate."'
"`(c) The conclusive proof showed that both parties agreed to the special provision because they honestly believed that the estimate of 12,716 cubic yards of rock was reasonably correct.
"`(d) The uncontradicted testimony of both parties is, they would not have made the contract but for this mistake of fact.
"`(e) Mr. Moorefield further said that if he "had known at the time that instead of there being 12,716 cubic yards of solid rock or a reasonable quantity like that, that there was nearly 42,000 cubic yards of solid rock, he would not have asked Mr. Blassingame to sign the contract," and would never have proposed the special provision.
"`(f) The plaintiff testified that he also was honestly mistaken about the quantity of rock; that he believed the estimate of 12,716 cubic yards made by the Highway Engineers was accurate, and that he would never have signed the contract but for this mistake.
"`(g) That the Master, in reaching this conclusion, entirely ignored this material evidence and absolutely failed to apply to the established facts the law of mutual mistake that "if an agreement is induced by a mistake common to both parties, without which mistake the agreement would not have been made, the agreement is inoperative and void."'
"Specification of error:
"It is submitted that the testimony conclusively shows: (1) That the parties intended to make the identical contract into which they entered; (2) that they intended the special provision of 75 cents per cubic yard to apply to all rock excavation in excess of the estimated quantity of 12,716 cubic yards, whether such excess should prove to be great or small; (3) that Blassingame at the time of entering into the contract was not concerned as to the actual amount of rock excavation because, as he testified, the work was to be done at unit prices; (4) that Blassingame, under the terms of his contract, assumed the risk of the rock excavation being greater than that anticipated by the parties; (5) that the fact that both parties may now say that they would not have made the contract which they did make, is not conclusive of the plaintiff's right to rescind, modify, or reform the contract; (6) the uncontradicted testimony shows that had the amount of rock excavation been known, Jordan, as low bidder, would have secured the contract unless Blassingame had agreed to the special provision of 75 cents per cubic yard for all of the excess rock, to which he did agree; (7) That it is a matter of speculation as to what action Greenville County might have taken, or what other bids might have been submitted, had the amount of rock excavation been known.
"XXII. Error of the Court in sustaining plaintiff's Exception No. 3 as to conclusions of law, to-wit: `It is respectfully submitted that the Master erred in not holding as a matter of law that the plaintiff had overwhelmingly established all the material allegations of his complaint, which had already been sustained against demurrer by the Supreme Court, said demurrer raising exactly the same points advanced by defendant's counsel before the Master, and having established his complaint by proof, the plaintiff was entitled to have the contract cancelled and final settlement decreed in his favor upon a quantum meruit basis.'
"Specification of error:
"It is submitted that the testimony failed to establish the material allegations of the plaintiff in that the uncontradicted testimony shows: (1) That the parties intended that 75 cents per cubic yard should be paid for all rock excavation in excess of the estimated quantity of 12,716 cubic yards whether such excess should prove to be great or small; (2) that from the beginning of work in 1923 until spring of 1925 when the work was practically completed, the plaintiff each month presented his claim for rock work on the basis of $1.50 per cubic yard up to 12,716 cubic yards, and 75 cents per cubic yard for all in excess of that amount, and received payment at those prices without complaint; (3) that when the claims presented each month were allowed and approved by the County Supervisor, this was equivalent to an adjudication as to those claims and binding upon both Blassingame and the County; (4) that Blassingame made no protest with reference to the prices being paid him for rock work until a short while before the final estimate in 1925, although the rock excavation had exceeded the 20 per cent. excess by 100 per cent. as early as November, 1923; (5) that when Blassingame, shortly before filing his final estimate in connection with the work, made complaint as to the prices to be paid, Moorefield merely offered to assist him in presenting the matter to the proper authorities.
"XXIII. Error of the Court in sustaining the plaintiff's Exception No. 4 as to conclusions of law, to-wit: `That the Master erred in not passing upon the question of waiver, which was submitted to him. The Master should have found that the plaintiff had not waived his rights in the premises, and plaintiff will ask the Circuit Judge to so find from the evidence.'
"Specification of error:
"1. It is submitted that it was unnecessary to consider the question of waiver as the uncontradicted testimony shows: (1) That the contract was not entered into through mutual mistake; (2) that the parties intended to make the identical contract which they did make; (3) that Blassingame agreed and intended to agree that all rock excavation in excess of the Engineer's estimate of 12,716 cubic yards should be paid for at the rate of 75 cents per cubic yard.
"2. It is submitted that the uncontradicted testimony shows: (1) That plaintiff waived any right which he might have had to rescind or reform the contract; (2) that from the time Blassingame began the work in 1923 until a short time before the final estimate, he presented each month his claim for rock excavation on a basis of $1.50 per cubic yard up to 12,716 cubic yards, and 75 cents per cubic yard for all in excess of 12,716 cubic yards; (3) that he received payment upon the claims so presented by him, upon the basis of the unit prices named and agreed to in his contract, and made no protest with reference to the prices for such work:
(4) that upon the conclusion of the work he received payment upon the final estimate and gave his receipt in full.
"XXIV. Error of the Court in failing to sustain the Master's finding: `That Blassingame cannot now call upon the Court to change the terms of his contract by placing a limitation upon his liability, which would be clearly against the express terms of the contract.'
"Specification of error:
"It is submitted: (1) That the evidence shows that the terms of the contract are clear to the effect that 75 cents per cubic yard was to be paid for all rock excavation in excess of 12,716 cubic yards, there being no limitation whatsoever as to the amount of rock excavation; (2) that, under the terms of the contract, Blassingame expressly assumed the risk of all unknown condition; (3) that the testimony conclusively shows that both Blassingame and the Engineers contemplated that the rock excavation would exceed the estimated quantity. They knew that it was impossible to ascertain the exact amount, and for that reason inserted the blanket provision for the payment of 75 cents per cubic yard for all excess rock excavation. It is further submitted that had Blassingame desired a limitation of his risk, he could have insisted upon such limitation at the time of the making of the contract, and that, having failed to do so, he cannot now call upon the Court to provide such a limitation.
"XXV. Error of law in failing to sustain the Master's finding: `That the plaintiff has not made out a case of mutual mistake; that the very contingency that the rock might exceed 12,716 cubic yards was expressly covered by the terms of the contract providing for the payment of all rock in excess of the estimated amount at the rate of 75 cents per cubic yard.'
"Specification of error:
"It is submitted that the evidence conclusively shows: (1) That the parties contemplated an excess of rock excavation, and knew that it was impossible for them to ascertain in advance of the work the actual amount of rock excavation; that for this reason the special provision for the payment of 75 cents per cubic yard was inserted, and was intended to apply to all rock excavation in excess of the estimated quantity of 12,716 cubic yards, whether such excess should prove to be great or small; and (2) the fact that the excess was greater than the parties at the time thought it would be, does not make out a case of mutual mistake entitling the plaintiff to rescission, modification or reformation of the contract.
"XXVI. Error of the Court in not dismissing the complaint."
Messrs. Oscar K. Mauldin and Haynsworth Haynesworth, for appellant, cite: Rescission or reformation of contract: 3 Will., on Cont., 2738, Sec. 1543; 2 Pom. Eq. Jur., Sec. 855; 1 Bail., 597; 148 Fed., 594; 91 S.C. 332, 334; 79 Atl., 233; 2 Speer, 697; 83 S.C. 90; 91 Fed., 833; 109 So., 816; 242 Fed., 350; 258 U.S. 6. Right of rescission must be exercised promptly: 284 Fed., 137; 93 U.S. 55; 72 Fed., 618; 91 Fed., 833. Jurisdiction of public roads in County Supervisor: Sec. 1059, Code; 83 S.C. 128. Authority of State Highway Department: Secs. 3054, 3055, Code; 1 Strob., 329. Parol evidence inadmissible to vary terms of written contract: 136 S.C. 389. Distinction between account stated and account settled: 2 S.C. 95; 100 S.C. 100; 128 S.C. 267; 15 F.2d 474; 55 Atl., 584. Action of County Commissioners in auditing or refusing claim against county is res adjudicata; set aside only for mistake or fraud: 17 S.C. 563; 16 S.C. 236; 25 S.C. 100; 35 S.C. 245; 40 S.C. 276; 63 S.C. 189; 81 S.C. 419; 85 S.C. 297; 81 S.C. 201; 90 S.C. 180; 84 S.C. 410. Cases distinguished: 17 L.R.A. (N.S.), 96; 115 S.C. 452.
Messrs. Price Poag, Dean Cothran Wyche, and P. A. Bonham, for respondent, cite: Mutual mistake: 6 R.C. L., 621; 120 Pac., 859; 134 S.C. 324; 89 S.E., 123; 115 S.C. 459; 17 L.R.A. (N.S.), 96. Cases distinguished: 83 S.C. 90; 78 C.C.A., 366; 240 U.S. 156; 245 U.S. 159; 175 U.S. 588; 44 N.W., 1; 172 U.S. 372; 204 Fed., 859; 249 U.S. 399; 226 Fed., 728; 195 N.W., 754; 262 U.S. 495; 11 Strob., Eq., 148; 83 S.C. 90; 29 S.C.L., 697; 32 S.C.L., 329; 148 Fed., 594; 175 U.S. 588; 14 S.W., 557; 109 So., 816.
February 19, 1929. The opinion of the Court was delivered by
I do not concur in the affirmance of the circuit decree as proposed in the opinion of Mr. Justice Carter for the reasons which follow.
The complaint contains two separately stated causes of action, based upon practically the same right, to have a certain contract entered into between the plaintiff and Greenville County, for the construction of what is known as the Geer highway, rescinded, and that he be allowed compensation for the work done by him upon the basis of quantum meruit, which he fixes at $68,620.69.
It appears that in the fall of 1922, Greenville County decided to construct an entirely new highway, leaving the old road to Caesar's Head near Cleveland and passing up the mountains by Caesar's Head and on to the North Carolina line near Cedar Mountain, connecting there with a road from the state line to Brevard, N.C. The construction of the highway, afterwards known as the Geer highway, was placed in the hands of the State Highway Department as provided by law. The County of Greenville took no active part in the work; its connection with the enterprise was to pay the bills as they were approved by the Highway Department.
The Highway department made extensive surveys of the route, prepared maps, profiles, plans, specifications, and the contract which was made in the name of Greenville County. Bids were called for the advertisement based upon the data prepared by the Department and on file in its office.
The bids were made upon various units of construction, common excavation, solid rock excavation, and many others. The bid of the plaintiff Blassingame, upon its face, as a whole, appeared not to be the lowest; the lowest was that of one Jordan. Blassingame's bid on solid rock excavation was $1.50 per cubic yard; that of Jordan, $1. Blassingame's bid on solid rock excavation was the highest for this particular unit named by any of the bidders.
The estimated quantity of solid rock upon the entire line through the mountains, as per the survey and estimate of the engineer of the Highway Department, and upon, which bids were called for and made, was 12,716 cubic yards. An excess of 20 per cent. was allowed over this estimate for which compensation was to be made at the same rate.
After the bids had been submitted and upon consideration of the two bids of Blassingame and Jordan, which were the two lowest, the engineer suggested to Blassingame that if the quantity of rock should considerably exceed the estimate, the Jordan bid would be the lower of the two, and that if he would modify his bid by agreeing to accept 75 cents per yard for all rock excavation in excess of the estimate of 12,716 yards plus 20 per cent., the contract would be awarded to him. Without advising with Jordan about the proposed modification the contract was awarded to Blassingame upon his acceding to the suggestion of the engineer.
Blassingame commenced work in November, 1922. No rock was encountered until February, 1923. In August, 1923, the rock equaled the estimate of 12,716 yards, and by October, 1923, it had passed 12,716, plus 20 per cent., 2,543, 15,259 yards. The final estimate, June, 1925, showed a total yardage of 41,694 yards, an excess of 28,978 yards over the original estimate of 12,716 yards.
The contention of the plaintiff is that there was a mutual mistake of the parties as to the quantity of rock to be excavated; that he relied upon the original estimate of 12,716 yards, plus 20 per cent.; that this was the basis of the contract into which he entered and that but for that reliance he would not have entered into it; that both he and the Highway Department were mistaken in the real quantity of rock: and that he is therefore entitled to have the contract rescinded and to recover upon a quantum meruit for the work actually done, which amounted to some 81,000 yards, which after deducting payments made as the work progressed entitled him to $68,620.69.
The defendant filed a demurrer to the complaint upon the general ground, which was sustained by his Honor, Judge Mann, at November term, 1925. Upon appeal the order was reversed. 134 S.C. 324, 132 S.E., 616.
At September term, 1926, the case by consent was referred to the Master for the trial of all equitable issues, including the question of waiver. The Master took the testimony, and on April 30, 1927, filed his report finding in favor of the defendant and recommending that the complaint be dismissed. Upon exceptions by the plaintiff to the Master's report, the matter was heard by his Honor, Judge Bonham, at November term, 1927. He filed a decree dated December 19, 1927, reversing the Master's conclusions, and from that decree the defendant has appealed upon exceptions which fairly raise the questions hereinafter considered.
The burden of the plaintiff's complaint is that both he and the department made a great mistake in the estimate of solid rock excavation, upon which estimate he made his bid. The evidence shows that he made no estimate at all; that he relied entirely upon the estimate of the department. The estimate was made, of course, in advance of the excavation, based upon external appearances.
The printed instructions to bidders contained this clause: "Familiarity With Proposed Work. The bidder is required to examine carefully the site of and the proposal, plans, specifications and contract form for the work contemplated, and it will be assumed that he has judged for and satisfied himself as to the conditions to be encountered, as to the character, quality and quantities of work to be performed and materials to be furnished, and as to the requirements of these specifications and contract."
I think that the Master has very correctly "sized up the situation" in the following language:
"Blassingame was anxious to get the job. In order to accomplish this purpose he visited the Chief Engineer in Columbia. He was told that his bid was not the lowest, but that if he would change his price on the rock excavation so as to charge 75 cents per cu. yd. for any excess above 12,716 cu. yds., the contract might be awarded to him. Accordingly Blassingame changed his price for the rock excavation so as to charge $1.50 for rock excavation up to 12,716 cu. yds. and 75 cents for any excess above 12,716 cu. yds. Thereupon the contract was awarded to Blassingame without giving Jordan, the lowest bidder, the opportunity to meet Blassingame's terms.
"Neither Blassingame nor the engineers knew what amount of rock would have to be removed. According to the testimony, Blassingame thought it would not exceed 12,716 cu. yds. The Engineer thought that it would exceed this amount and so told Blassingame. The contract was made in contemplation of the uncertainty on this point. Blassingame assumed whatever risk was involved. His reason may have been that assigned by one of his witnesses, Engineer R.T. Brown, who stated that Blassingame `felt that with the equipment he proposed to use, he should be able to handle the overrun at that price without loss.'"
The contract provides:
"The contractor further covenants and agrees that he has examined the plans, estimates of quantities, specifications, character of work, location, accessibility and all other conditions, to his satisfaction, and will make no claim for compensation due to misunderstanding, nor claim deception, because of change of quantities upon which the proposal was based, character of work, location, accessibility or other conditions surrounding or relating to the work.
"The contractor hereby further agrees to receive the prices set forth in the foregoing schedule of prices as full compensation for furnishing all the materials and labor which may be required in the prosecution and completion of the whole of the work to be done under this contract, and in all respects to complete said contract to the satisfaction of the said Engineer.
"On page 122 the contractor stipulated that he understood that `the quantities of work, as shown herein, are approximate only, and are subject to increase or decrease.'"
As the Master pertinently observes:
"Had Blassingame desired to place a limitation upon his agreement to remove the excess rock at 75 cents per cu. yd., the time to have done so was when he made his bid. Had he insisted upon such a limitation at that time, he might have lost the contract. He did not insist upon such a limitation. On the contrary, he stipulated that he would make no claims for compensation due to misunderstanding.
"* * * Having obtained the contract, Blassingame began the work in December, 1922, and finally completed the job in June, 1925. In pursuance of the terms of the contract the engineers each month made an estimate of the value of the work done, based upon the unit prices stipulated in the contract. Each estimate stated the rock excavation on the basis of $1.50 per cu. yd. up to 12,716 cu. yds., and at 75 cents per cu. yd. for all rock excavated in excess of that amount. These estimates were presented by the engineers to Blassingame. He thereupon submitted them to the County Commissioners, made out a claim for the amount due him as shown by such estimates, swore that such claim was correct, had the claim approved, received a check for the amount and gave a receipt in full for the claim. This was done month after month. The estimates, with the utmost detail, set forth all the facts, each estimate showing the amount of work done throughout the job and the prices therefor. Finally, at the conclusion of the job, Blassingame presented his bill for the balance, including the 10% reserved, swore to its correctness, had the claim approved, received a check for the full amount and executed a receipt in full. The total rock excavation was estimated by the State Highway Engineers at 41,403 cu. yds. These figures were contained in the last several estimates and in that on which final settlement was based.
"Blassingame is an experienced contractor. He is a native of Greenville County and thoroughly familiar with the mountain section. He admitted in the contract and testified on the stand that he had visited the proposed route and was familiar with the natural conditions.
"At the time when the contract was made, neither Blassingame nor the engineers knew the actual amount of rock which would have to be removed. But they had in contemplation that it might exceed 12,716 cu. yds. and the contract stipulated the price which would be paid for such excess. Blassingame, in agreeing upon a price of 75 cents per cu. yd. for such excess assumed whatever risk was involved. He agreed to remove all the excess at 75 cents per cu. yd. and is bound by this agreement. He might have insisted upon a limitation of this risk, but did not do so, and he cannot now call upon the Court to change the terms of his contract by placing a limitation upon his liability, which would be clearly against the express terms of the contract."
It is also a serious question in this connection whether the conduct of Blassingame in these periodical and final settlements did not constitute an account stated, which could only be relieved against by a direct attack against them, upon the ground of mistake, fraud, or misrepresentation.
The rule is nowhere more clearly stated than in Murrel v. Murrel, 2 Strob. Eq., 148, 49 Am. Dec., 664: "A party fully competent to protect himself; under no disability; advised as to all circumstances by which he may be saved in his rights; or in a situation where he might, by due diligence, be so advised; nor overreached by fraud, concealment or misrepresentation, nor the victim of a mistake against which prudence might [not?] have guarded; has no right to call upon Courts of justice to protect him against the consequences of his own carelessness, and to disturb the peace of society by his clamors for that justice which he has voluntarily or negligently surrendered." See, also, authorities cited in Master's report, and the following: Williston on Cont., § 1543; 2 Pom. Eq. Jur., § 855; Lawton v. R. Co., 91 S.C. 332, 74 S.E., 750; Sanitary Dist. v. Ricker (C. C.A.), 91 F., 833; Barker v. New York (C.C.A.), 242 F., 350; MacArthur v. U.S., 258 U.S. 6, 42 S.Ct., 225, 66 L.Ed., 433.
In Columbus Ry., Power Light Co. v. Columbus, 249 U.S. 399, 39 S.Ct., 349, 63 L.Ed., 669, 6 A.L.R., 1648, the Court said: "* * * If a party charge himself with an obligation possible to be performed, he must abide by it unless performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties will not excuse performance. Where the parties have made no provision for a dispensation, the terms of the contract must prevail. United States v. Gleason, 175 U.S. 588, 602 [ 20 S.Ct., 228, 44 L.Ed., 284], and authorities cited; Carnegie Steel Co. v. United States, 240 U.S. 156, 164, 165 [ 36 S.Ct., 342, 60 L.Ed., 576]. The latest utterance of this Court upon the subject is found in Day v. United States, 245 U.S. 159 [ 38 S.Ct., 57, 62 L.Ed., 219], in which it was said: `One who makes a contract never can be absolutely certain that he will be able to perform it when the time comes, and the very essence of it is that he takes the risk within the limits of his undertaking. The modern cases may have abated somewhat the absoluteness of the older ones in determining the scope of the undertaking by the literal meaning of the words alone. The Kronprinzessin Cecilie, 244 U.S. 12, 22 [ 37 S.Ct., 490, 61 L.Ed., 960]. But when the scope of the undertaking is fixed, that is merely another way of saying that the contractor takes the risk of the obstacles to that extent.'"
I think therefore that the decree should be reversed and the report of the Master declared to express the judgment of this Court. A majority of the Court concurring herein, this becomes the judgment of this Court.
MESSRS. JUSTICES BLEASE and STABLER concur.
"This action was begun February 16, 1925, by the service of summons and complaint upon the defendant, and seeks the cancellation of a highway contract between the parties and for the recovery of $68,620.69 as damages claimed to have been suffered by the plaintiff on account of alleged mutual mistake in the making of the contract which was for the construction of the Geer highway in Greenville County. The original amount asked for in the complaint was $65,983.00, an amendment being allowed at the reference to conform to the proof.
"The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, the particulars thereof being set forth in the demurrer.
"The demurrer was heard before his Honor, Judge M. M. Mann, who filed an order November 11th, 1925, sustaining the demurrer.
"Thereafter, on appeal to the Supreme Court, the order sustaining the demurrer was reversed. Blassingame v. Greenville County, 134 S.C. 324, 132 S.E., 616.
"By consent the case was referred to the Master September 15, 1926, for the trial of all equitable issues, including the question of waiver.
"Pursuant to the order of reference, the case was heard before E. Inman, Master, who took the testimony and filed his reports as of April 30th, 1927.
"Thereafter plaintiff's attorneys served notice of appeal, and on May 7, 1927, filed their exceptions to the Master's report.
"On June 22d 1927, the plaintiff departed this life. By order of the Court, dated September 22, 1927, Title Guaranty Trust Company, as executor, was substituted as party-plaintiff.
"The appeal from the Master's report was heard November 8th, 1927, before his Honor, Judge M.L. Bonham, who filed his decree on December 19th, 1927."
From Judge Bonham's decree, which was adverse to defendant's contentions, the defendant has appealed to this Court, and asks a reversal upon the grounds set forth under the exceptions.
The decree of Judge Bonham contains a full and comprehensive statement of the facts and questions involved in the case, and for the reasons stated therein, I think the exceptions should be overruled, and the judgment of this Court should be that the decree and judgment of the Circuit Court be affirmed; and the cause should be remanded to the Circuit Court for the purpose of establishing the amount, if any, the plaintiff is entitled to recover against the defendant, and for such other purpose or purposes the parties may be advised, not inconsistent with the views herein expressed.
MR. CHIEF JUSTICE WATTS concurs.