concurring specially. I concur in
the judgment and in all other rulings by the majority except as noted in this special concurrence. I do not concur in the last sentence of division (2a), as follows: “The petition here makes a juxy question on the issue of whether the damage resulting from continued wetness which was the cause of proof-rolling failures was a liability of the plaintiff or the defendant.” I do not think that the statement goes far enough. It overlooks the question of bad faith or gross mistake. The damage might have been due to the fault of the department by reason of faulty design (on demurrer only) and delay in correcting it, but the jury, to hold the department liable, would have to find bad faith on the part of the department in the making of the faulty design and in the delay in correcting it. A note should be added here to the effect that there could be no recovery for faulty design alone because the construction company was fully aware of it before it made its bid. If it gambled on the high water level and lost, it could not plead a known faulty design as a fraud upon it.
Division 3 of the majority opinion deals with the petition of the plaintiff in error for a diminution of record and by implication overruled the contention of the defendant in that the judgment should be affirmed on the genex-al grounds because the entire contract between the parties was not introduced in evidence and was not brought up as a pai’t of the record. I agree that a diminution of record ruling is not necessary and hold that under the facts hereinafter stated both parties are estopped to deny that the parts of the contract which were introduced in evidence contain all of the agreements, etc., necessary *840to a decision of all of the questions in this case, those raised by demurrers and on motion for a new trial. The Cobb Construction Company sued for damages based on an entire contract, the exact parts of which were stipulated by the parties and the stipulation was approved by the court. It was stipulated by the parties that all parts of the contract be considered as a part of the petition for the purposes of demurrer so1 that the voluminous material need not be physically attached to the petition. It was not stipulated that all of the different parts of the contract be considered as having been introduced in evidence. The Cobb Construction Company, though relying for recovery on an entire contract, did not introduce any part of the contract in evidence. As a consequence, one conclusion would be that there could be no recovery because of the absence of the entire contract upon which the action is in part principally based. However, in all fairness I do not think this result would follow, because the Highway Department introduced in evidence the parts of the contract which it contended governed all issues in the case, and on the other side of the ledger the construction company made no objection to the introduction of only a part of the entire contract and both parties tried the case on the basis of the incomplete contract introduced in evidence and my opinion is that both parties are estopped by an admission in judicio, in the absence of objection for incompleteness of the matter introduced, to say now that the parts of the contract introduced in evidence by the Highway Department were not sufficient for the decision of every issue involved.
I do not concur in the ruling in Division 4 of the opinion. It was error for the court to instruct the jury that the contract sued on, having been prepared by the State Highway Department, should be construed against it. The court should construe contracts in all cases except where there is an ambiguity and evidence as to how it should be construed authorizing more than one construction. I do not think that the department agreed for the jury to construe the contract or is estopped to except to the charge in this instance because it requested the court to charge the jury that it should construe certain sections of the contract in connection with others. The Department may have been in error in agreeing for the jury to construe sections in pari materia, *841which might render them plain and unambiguous, but it certainly did not mean that the flood-gates were opened for a charge that the jury should construe unambiguous provisions of a contract. Unambiguous provisions of a contract are not construed by anybody against anybody.
I concur in the ruling in Division 8 except that the error in the charge does require a new trial. As to the discussion of the facts in Division 8 and 8 (a) I do not agree that under any circumstances can the plaintiff recover for a faulty design of which it knew before its bid for the contract, either alone or in conjunction with delay in the correction of the design. In my opinion the only recovery which could be had in this case must be based on fraud or gross mistake on the part of the department amounting to fraud in unreasonably delaying the correction of the faulty design. In my opinion there was not sufficient evidence to show fraud or gross mistake on the part of the department in the delay in correcting the design which both parties knew was faulty and exactly why, from the time of the bidding.