(concurring).
I concur in the result reached in the principal opinion for the reasons herein stated.
*813Plaintiff’s recovery was sought on the basis of alleged breach of contract by the State Highway Commission. Briefly stated, I understand its position to be this: The contract in question was for bituminous resurfacing of some outer roadways of 1-70. The specifications called for plaintiff to tight blade the material on the existing roadway into a windrow and then to mix it with new rock furnished by the state. The resulting aggregate was then to be mixed with binder oil and spread on the roadway. The tight blading, which plaintiff says means to scrape up all loose material with the grader blade, did not produce enough material to add to the new stone and complete the resurfacing job. The state, instead of increasing the amount of new stone to be brought in, instructed plaintiff to undercut the existing material on the roadway. This resulted in much more dirt and dust being picked up and mixed into the aggregate. The result was that an overrun of 38% of binder oil was required to prepare the aggregate for spreading on the job. Plaintiff was paid for the additional oil furnished, but the presence of the dirt and dust plus the extra oil required much more handling and mixing, with resulting increased cost to the contractor.
Plaintiff’s position is that defendant contracted that the material on the highway, when tight bladed, would produce sufficient aggregate, when mixed with the new rock furnished, to do the resurfacing job. Plaintiff says that when it did not produce enough material by tight blading but, instead, required plaintiff to undercut the roadway, resulting in excessive dirt and dust in the aggregate, the defendant breached said contract, for which it is liable.
Where the facts are such that the Highway Commission does breach a provision in its contract, or breaches a warranty in its plans and specifications on which the contractor is entitled to rely, plaintiff’s position that the Commission can and should be liable for such breach of contract or breach of warranty is sound. Such an instance can be illustrated by the facts in a case which previously was appealed to this court but in which no opinion is reported for the reason that the case was settled and the appeal dismissed. In that case the contract called for construction by the contractor of a soil cement base and the specifications provided that the soil to be used in the preparation of the soil cement base should be “select material” taken from a borrow area specified in the plans and specifications. It was provided that the contractor first would remove the overburden from the borrow area to a certain depth, after which the “select material” was to be used in making soil cement. Actually, it developed that the “select material” under the overburden contained debris of various kinds, would not dry out properly and was not “select material”. The contractor eventually obtained elsewhere the material which was used in building the soil cement base. Plaintiff then sought recovery on the theory of defendant’s failure to furnish “select borrow material” as it had promised in its contract to do.
A fair interpretation of that contract was that the Commission had affirmatively and unequivocally represented the presence and promised the availability of “select material” lying beneath the overburden. Subsequently, when the overburden was removed, it developed that the representation as to the character of the material was incorrect because it was not “select material”. Consequently, the Commission breached its contract.
The Commission there relied on the exculpatory provision from the standard specifications to the effect that the contractor had examined the site and relied on .its own investigation rather than figures of the Commission. However, the facts were that there was not sufficient time from the advertisement for bids and the receipt of bids for a contractor to have taken samples and had the material tested to see whether it was or was not “select material”. The provision for independent investigation was not reasonably capable of fufillment. Fur*814thermore, the positive representation as to conditions served to excuse failure to make tests. Under such circumstances, necessarily the contractor relied on the representation in the contract, and the Commission was not excused for its breach of contract simply because of the exculpatory provision in the standard specifications. In my view, if the Commission affirmatively represents or warrants matters on which the contractor is entitled to rely, and then breaches that representation, it is liable for such breach.
However, in this case I am unable to conclude that the evidence shows that the defendant did in fact contract and warrant that loose material tight bladed from the road surface would produce one-half of the amount of aggregate required for the resurfacing, or that defendant breached its contract when there was not enough material without the undercutting. For that reason, I conclude that a breach of contract on the part of the Commission, as contended for by plaintiff, was not shown by the evidence, and I therefore concur in the result reached in the principal opinion.