{
  "id": 5333460,
  "name": "Krueger Construction Co., Inc., Claimant, vs. State of Illinois, Respondent",
  "name_abbreviation": "Krueger Construction Co. v. State",
  "decision_date": "1972-10-19",
  "docket_number": "No. 5193",
  "first_page": "83",
  "last_page": "90",
  "citations": [
    {
      "type": "official",
      "cite": "28 Ill. Ct. Cl. 83"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. Ct. Cl.",
    "id": 8793,
    "name": "Illinois Court of Claims"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "char_count": 12778,
    "ocr_confidence": 0.88,
    "pagerank": {
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      "percentile": 0.7518693174775827
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    "sha256": "ce2a12b1981e26ec667676141d1aa18a179087ad5c4081a0be2c655ccc6d567a",
    "simhash": "1:0831e042b01fc2fa",
    "word_count": 2119
  },
  "last_updated": "2023-07-14T21:35:37.652347+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Krueger Construction Co., Inc., Claimant, vs. State of Illinois, Respondent."
    ],
    "opinions": [
      {
        "text": "Burks, J.\nThis claim arises out of a contract entered into between the claimant and the respondent in 1959 for the resurfacing of the mile track and the half mile track at the Illinois State Fair Grounds in Springfield.\nThe amounts claimed are, allegedly, for additional material deposited on the one mile track, the stockpiling and rehandling of material, and the blading of the half mile track. Claimant contends that these additions to the contract were made at the request of the respondent\u2019s Chief of Construction for the Department of Public Works and Buildings, Division of Architects and Engineers, or by the \u201cassociate engineers\u201d employed by the State of Illinois for this project.\nOnly questions of fact are involved in this case. They relate to the following matters which are in dispute:\n1. The quantity of dirt furnished by claimant to resurface the mile track;\n2. Whether or not claimant is entitled to additional compensation for expenses incurred in stockpiling and rehandling some of the dirt;\n3. Whether or not claimant is entitled to additional compensation for blading the half mile track.\nThese three areas of dispute must be resolved by a careful examination of the evidence in the record. We will summarize only the testimony presented which we regard as controlling on each of the three issues.\nFirst, we consider, the dispute between the parties as to the quantity of dirt furnished by claimant to resurface the mile track.\nMr. Orlando A. Krueger, Secretary of the claimant corporation, testified that he was the operations supervisor for the claimant and supervised the State Fairgrounds job. He said that the material placed on the tracks was taken from borrow pit sites selected by claimant and approved by the firm of Jenkins, Merchant and Nankivil, consulting engineers for the respondent. This firm is also referred to in the record as associate engineers.\nMr. Krueger testified that on the 6th of June, 1960, after the one mile track had been resurfaced, he made a cross-section of the borrow pits to determine the quantity of material excavated from the pits and placed on the track. Using his field notes and aFrieden calculator, he calculated that claimant removed from the borrow pits and spread on the mile track 10,444 cubic yards of dirt. On the witness stand he explained his method of calculation and introduced into evidence his cross-sections and field notes which were the foundations for his calculations. (Claimant\u2019s Exhibits 1, 2, 3 and 4.)\nNo witness for the respondent attacked either the cross-sections or the field notes presented by Mr. Krueger. Mr. Carter Jenkins, one of respondent\u2019s associate engineers, testified that the State also made cross-sections of the borrow pits in July and August, 1960, and determined that 8,688 cubic yards of material were placed on the mile track. This is the figure allowed claimant by the associate engineers. The State\u2019s cross-sections were not introduced into evidence nor were the persons who made them called as witnesses. Mr. Jenkins merely testified that, according to the State\u2019s figures, 8,688 cubic yards of dirt were used and he denied claimant\u2019s contention that 10,444 cubic yards were used.\nOn re-direct examination Mr. Krueger testified that the State\u2019s cross-sections were made after the borrow pits had been flooded by a spring creek running through the area; that the flooding occurred on June 21,1960; that it lasted for a week; that the flooding washed substantial quantities of material into the borrow pits, and that the State\u2019s cross-sections, made after such flooding, could not be used as a basis for determining the volume of dirt removed in the contract operations. This telling argument was not denied by the respondent.\nThere is sufficient evidence in the record to justify our finding that claimant did in fact furnish 10,444 cubic yards of dirt for the mile track rather than the 8,688 cubic yards allowed by the State. We find that claimant has sustained the burden of proof on this point; that a total of 10,444 cubic yards of material was actually required, which is 1,756 cubic yards over and above that allowed by the associate engineers.\nThe written agreement between the parties was not a lump sum contract. It was a unit price contract calling for payment at the unit price for the quantities of materials actually used. At the agreed unit price of $2.20 per cubic yard, we find that the claimant should have been paid an additional sum of $3,863.20 for the additional 1,756 cubic yards of dirt actually used in the project.\nThe second area of dispute concerns the stockpiling and rehandling of material for the tracks, and whether claimant is entitled to additional compensation for this procedure.\nMr. Krueger testified for the claimant that on January 5, 6, 7 and 8, 1960, dirt was taken from the pits and stockpiled in the paddock area at the request of the respondent\u2019s associate engineers; that nothing useful was accomplished by this stockpiling; that it was uneconomical to do; that it involved using a machine to stack it up and make a pile of it, instead of dumping it directly on the track as claimant would normally do.\nBy invoice dated August 23, 1960, claimant billed the respondent for said additional work. The statement (claimant\u2019s Exhibit 11) showed a charge in the amount of $2,660.00 for rehandling 2,800 cubic yards of dirt; $316.80 for 176 hours of overtime; $47.52 for overhead; a total additional payment of $3,326.97 was requested by the claimant. There is an apparent error in the overhead item but this is not material to the main issue before us.\nMr. James N. Gaunt, who was respondent\u2019s Chief of Construction for the Department of Public Works and Buildings at the time that the contract in question was being performed, was called as a witness and testified for the claimant. Mr. Gaunt\u2019s employment with the State having been terminated in 1962, he had no access to respondent\u2019s records when he testified at the hearing on July 1, 1965.\nMr. Gaunt said he did not believe that stockpiling of material was required by the contract; that the stockpiling procedure was ordered by a Mr. Carl Funk who worked for respondent\u2019s consulting engineers; and he gave the following answer to a question from claimant\u2019s attorney:\n\u201cQ And this was (stockpiling) a precautionary measure also to insure that the work would be completed by State Fair time?\n\u201cA Well, they had a great deal of it stockpiled. We had several good projects going on up in the northern part of the State, and I was up there part of the time. Then I took a vacation and when I came back the bulk of it was done. I questioned the associate engineer as to why they were doing it and he said he didn\u2019t want to get caught out there with the borrow pit full of water and not get done by Fair time. I said you obligated the State for a lot more cost. He said, Oh, hell, I don\u2019t care what it costs.\u201d (from transcript - page 55)\nMr. Gaunt\u2019s testimony was categorically denied by Mr. Carter Jenkins, member of the associate engineers, who testified for the respondent. Mr. Jenkins stated that no member of his firm authorized the stockpiling, and that claimant did it for his own convenience because the borrow pits selected were subject to flooding.\nThe following question by claimant\u2019s attorney and the answer by Mr. Jenkins appears at page 43 of the transcript of the second hearing:\n\u201cQ Mr. Jenkins, weren\u2019t you yourself concerned about the flooding of the borrow pits and so concerned that you, in fact, requested representatives of Krueger Construction Company to stockpile this dirt during periods of time that they could get into the borrow pit area?\n\u201cA No, sir, at no time whatsoever was it ever done by me or any of our representatives. We were surprised one day to find that he had started stockpiling operations. I believe that, under the specifications, the stockpiling would be permitted but would be included in the cost bid for the work to be performed.\u201d\nMr. Jenkins apparently had reference to the following section of the contract specifications:\n\u201c23\u00d325. If at the time of excavation, it is not possible to place material in its proper section of the permanent construction, and Supervising Architect so directs, it shall be stockpiled in approved areas for later use.\u201d (Claimant\u2019s Ex. 13, page RS-5)\nThe oral testimony in the record on this point at issue is completely contradictory. However, we do not need to weight the credibility of either witness to resolve this question.\nWhether Mr. Jenkins\u2019 employee, Carl Funk, ordered the stockpiling or whether it was initiated by claimant, there is nothing in the contract documents to call for extra compensation for this work. In fact, we interpret the following section 23027 of the specifications to mean that payment at the contract unit price per cubic yard for the total of all material moved covers all aspects of the work.\n\u201c23027. Payment for excavation will be made at the contract price per cubic yard for the total of classified or unclassified material excavated and moved in accordance with the plans and specifications or as otherwise specifically directed by the Supervising Architect. The payment for excavation shall constitute full compensation for excavation, hauling, spreading and compacting material in embankment, smoothing graded surfaces, stripping vegetation, removal of all undesirable material, scarifying and recompacting ground surfaces under embankment and all other subsidiary grading operations not specifically set up in the contract as pay items including the furnishing of all labor, equipment, tools and incidentals necessary to complete the work.\u201d\nThe above section 23027 cannot be lifted out of context for purposes of interpretation. It must be read as an integral part of the entire contract and in connection with other provisions thereof which state conditions precedent to the allowance of any additional compensation. We refer to the following provisions under \u201cGeneral Conditions of the Contract\u201d:\n\u201cARTICLE 22: CHANGES IN THE WORK: (Para. 2)\nNo change shall be made, unless in pursuance of a written order from the Supervising Architect, stating that the Owner has authorization for the change, and no claim for an addition to the Contract shall be valid unless so ordered.\u201d (Claimant\u2019s Exhibit 13, p. 10)\n\u201cARTICLE 23: CLAIM FOR EXTRAS:\nIf the Contractor claims that any instructions, by drawings or otherwise, involve extra cost under this contract, he shall give the Supervising Architect written notice thereof before proceeding to execute the work, and, in any event, within two weeks of receiving such instructions. No such claims shall be valid unless so made.\u201d (Claimant\u2019s Exhibit 13, p. 11)\nClaimant failed to produce either a written order as required by Article 22 or the advance written notice before proceeding with the alleged extra work as required by Article 23. The absence of such required written evidence confirms our interpretation of section 23025 as stated above. Therefore, claimant\u2019s claim in the amount of $3,326.97 for stockpiling dirt must be denied.\nThe third and final issue of fact is whether or not claimant is entitled to additional compensation for blading the half mile track.\nThe record fully supports our finding that the blading of the half mile track was additional work authorized by respondent\u2019s Chief of Operations, James N. Gaunt, and that the work was done by the claimant at Mr. Gaunt\u2019s direction. The reason advanced for blading the half mile track was to get the horses off of the mile track while it was under repair and provide them with a place for training. The work was also requested by the Department of Agriculture.\nRespondent\u2019s former Chief of Operations, Mr. James N. Gaunt, testified that $573.60 was a fair and reasonable charge for this additional work, and the court accepts his statement.\nOn the three issues presented in this cause, the court states its conclusion as follows:\n1. That claimant should be awarded the sum of $3,863.20 for an additional 1,756 cubic yards of dirt used in resurfacing the mile track as claimed in the complaint;\n2. That claimant\u2019s claim for stockpiling dirt must be denied; and\n3. That claimant should be awarded the sum of $573.60 for blading the half mile track, less the sum of $306.46 acknowledged by claimant to be an overpayment for cubic yards of dirt used on the half mile track.\nAccordingly, the claimant, Krueger Construction Co., Inc., is hereby awarded the total sum of $4,130.34.",
        "type": "majority",
        "author": "Burks, J."
      }
    ],
    "attorneys": [
      "Frederick R. Pefferle, Attorney for Claimant.",
      "William J. Scott, Attorney General; William E. Webber and Lee Martin, Assistant Attorneys General, for Respondent."
    ],
    "corrections": "",
    "head_matter": "(No. 5193\nKrueger Construction Co., Inc., Claimant, vs. State of Illinois, Respondent.\nOpinion filed October 19, 1972.\nFrederick R. Pefferle, Attorney for Claimant.\nWilliam J. Scott, Attorney General; William E. Webber and Lee Martin, Assistant Attorneys General, for Respondent."
  },
  "file_name": "0083-01",
  "first_page_order": 101,
  "last_page_order": 108
}