Denied July 15, 1919.
PETITION FOR REHEARING.
(182 Pac. 380.)
BEAN, JAcknowledging our appreciation of the assistance rendered by the briefs of able counsel upon both sides of this suit, we note that it is earnestly urged upon a petition for rehearing that the court erred in affirming the decree of t'he trial court for the \same amount as there decreed by reason of the fact that this court arrived at its conclusion by a different process from that followed by the trial court.
*13513, 14. Our former memorandum in this case indicates that plaintiff not having appealed from the decree of the lower court, we could not, if the testimony warranted, find for plaintiff in any greater sum than the decree appealed from. We do not think that the appellate court in the éonsideration of the case under Section 556, L. O. L., which provides for a trial de novo upon the transcript, and the evidence is confined to rr would necessarily follow the same path of the trial court, or be governed by the same reasoning, or make the same figures in computing the amount due as made in the decree appealed from. The language of the opinions of this court heretofore rendered does not confine a review upon an appeal in an equity suit within such strict limits. In Powers v. Powers, 46 Or., at page 481 (80 Pac., at page 1059), former Justice Bean uses the following language:
“Much of appellant’s brief is devoted to a discussion of the question whether the findings of fact of the trial court are supported by the evidence. Under our statute, on an appeal from a decree in a suit in equity, the cause is tried de novo upon the transcript and evidence accompanying it, and a final decree rendered here, without reference to the findings or conclusions of the trial court. ’ ’
In Gentry v. Pacific Livestock Co., 45 Or., at page 236 (77 Pac., at page 116), the same learned justice said:
“Under our statute, on an appeal from a decree in a suit in equity, the case is tried de novo, and a final decree entered by the appellate court, without reference to the findings of fact or conclusions of law of the trial court. ’ ’
Whatever our view may be in regard to the evidence in the case as to the amount, we confine the same to the *136amount found by the trial court. We arrive at the same conclusion as' the trial court by a different route, and know of no decision in this state tfiat restricts or hinders such a trial de novo.
In the short time of thirteen years that the writer has been engaged on this end of the line of work, a more solid record of material testimony, either of such .volume or of any length, has never been examined. We were pleased to give it our best thought and most careful attention, employing all the time necessary. This we are aware is not indicated by the memorandum opinion. ,
15. Counsel for the county maintain with considerable zeal
“That if the court shall set aside the award of the highway department, and make a new award, the burden of proving the items upon which'such award must be based, rested upon the plaintiff. * * That no evidence whatever of a substantive nature was ever introduced to substantiate a single item of such account,” referring to “force account.”
This important question was called to the attention of the court at the oral argument of the case, and commented upon by the respective counsel. The length of the record practically precludes a discussion of every point in the case. If we take this one which is so ably and strenuously contended for on behalf of the county, it will illustrate the others to a certain extent.
Referring, first, to some of the issues made in the pleadings relative to the force account work which are illustrative of the remainder, we find in paragraph XVII of the complaint the following:
“That at a certain other point on the line of said highway between Stations 392 and 398, heretofore known and referred to between the parties as the *137‘Siskiyou Curve,’ the said State Highway Engineer made certain substantial changes in the location of said highway and certain substantial alterations in the plans thereof, and in making such changes and alterations failed to furnish to the plaintiff proper stakes or elevations or directions for constructing that portion of said highway, and plaintiff was compelled by direction of said State Highway Engineer to keep a large force of men on the ground at great expense waiting for directions as to the manner of doing such work, and by reason of such changes, alterations and delays, plaintiff suffered damages in the sum of $804.
“That at Stations 674+90, 526+90, and 615+20 of said highway, the plaintiff put in place, under the grade of said highway, strictly in accordance with the plans and specifications and und'er the direction of said State Highway Engineer certain unprotected concrete culvert pipe. That the plans providing for the use of such pipe at said three points were defective for the reason that the pipe specified by the said State Highway Engineer for such use was not of sufficient strength to support the grade of the highway constructed thereover, and said pipe at each of said three points was crushed by the weight of the fill placed thereon. That thereupon, and after the said fill was so completed, the said State Highway Engineer directed and required the plaintiff to tunnel through the said highway fill at said three points and construct therein and thereunder at each of said three points a protected concrete culvert. That the work of constructing said three protected concrete culverts was exceedingly expensive on account of the fact that the fill at said points had been completed. That plaintiff was entitled to compensation for constructing said culverts at the prices for force account work so agreed upon between the parties, and at said prices, together with the cost of the material used in such construction, plaintiff is entitled to compensation in the sum of $3,280.”
*138The next paragraph XIX, is as follows:
“That at various other places along the location of said highway, not hereinbefore described, the said State Highway Engineer made numerous substantial changes in the location of said highway and numerous substantial changes in the plans thereof, and in making such changes and alterations failed to furnish to the plaintiff proper stakes or elevations or directions for. constructing said highway at such points, and plaintiff was compelled by directions of said State Highway Engineer to keep a large force of men on the ground at great expense, waiting for directions as to the manner of doing such work. That at all points along the line of said highway the said State Highway Engineer ..caused stakes to be set indicating the elevations of the completed road bed of said highway and said elevations were computed by said Engineer with reference to a large number of bench marks which the said Engineer had caused to be established along the line of said highway, and which bench marks the said Engineer represented to the plaintiff were in agreement one with another. That the said bench marks were in a large number of cases erroneous and not in agreement one with another, and as a result the grade stakes so set for the finished road bed were erroneous and the plaintiff was therefore required and directed by the said Engineer to change the grade of large portions of said highway after they had been completed in accordance with said stakes.
“That the plaintiff was entitled to compensation for performing the work described in this paragraph at the prices so agreed upon between the parties for force account work and at said prices, plaintiff is entitled to compensation in the sum of $15,344.25.”
In paragraph XXI, it is alleged as follows:
l “ * # That in accordance with the terms of said contract plaintiff delivered to the defendant County of Jackson on or before the 15th day of each calendar month bills for all the force account work above de*139scribed performed during the preceding calendar month.”
Paragraph XVII is answered in paragraph XIII of the answer as follows:
“That as to the allegations of paragraph XVTI of the complaint, this defendant denies that at a certain, or any, point on the line of said highway between Stations 392 and 398, designated in the complaint as Siskiyou Curve, or elsewhere, the State Highway Engineer made certain substantial, or any, changes in the location of said highway, or certain, or any, alterations in the plans thereof or that in the making of such, or any changes or alterations, failed to furnish the plaintiff with proper stakes or elevations or directions for constructing that or any portion of said highway, or that the plaintiff was compelled by direction of said State Highway Engineer to keep a large, or any, force of men on the ground at great, or any, expense, waiting for directions as to the manner of doing the work, or for any reason, or by reason of any such changes, alterations or delays the plaintiff suffered damage in the sum of $804, or any other sum, or otherwise, than as hereinafter alleged.”
With a further answer which reads:
“Further answering the allegations of Paragraph XVTI of the complaint, relating to work at the Siskiyou Curve this defendant alleges that the plaintiff did suffer some loss at said point due to changes in location and which were unavoidable, but within the terms of the contract, and for all extra work performed by him he was allowed force account therefor amounting to $154.38, and in the final estimate hereinafter referred to he was allowed under the head of ‘Extra Work Siskiyou Station’ the further sum of $950, which was allowed to, and did, include all of the claims and demands of plaintiff in said Paragraph XVII and all damages sustained by him by reason of any changes, alterations or delays at said Station- and was intended to and did cover every demand on account of any of *140the matters alleged in said Paragraph XYII of the complaint.”
Paragraph XIX is answered as follows by Paragraph XY:
“As to the allegations of paragraph XIX of the complaint, the defendant denies that at various other places along the location of said highway, not specifically described in the complaint, or elsewhere, the said State Highway Engineer made various substantial, or auy, changes in the location of said highway or numerous substantial, or any, changes in the plans thereof, except as hereinafter alleged, or that in the making of any changes or alterations, failed to furnish the plaintiff with proper stakes or elevations or directions for constructing said highway at such points, or that plaintiff was compelled by direction of State Highway Engineer to keep a large, or any, force of men on the ground at great, or any, expense waiting for directions ' as to the manner of doing such work or for any other reason; denies that the bench marks mentioned in said paragraph XIX of the complaint were in a large, or any, number of cases erroneous or not in agreement with one another, or that as a result the grade stakes so set for the finished road bed were erroneous, or that they were at all erroneous, and denies that the plaintiff was, therefore, or at all directed by said Engineer to change a large portion of said highway after the same had been completed ifi accordance with said stakes, or otherwise, except' as hereinafter alleged; denies that the plaintiff was or is entitled to compensation for performing the work described in said paragraph at force account prices or at any other prices than those specified in the contract, or that at said prices, or at all, the plaintiff is entitled to compensation in the sum of $15,344.25, or any other suip, or at all, except as hereinafter alleged.”
The allegation as to delivering to the county on or before the fifteenth day of each calendar month, bills *141for all of the force account work performed during the preceding calendar month as alleged in paragraph XXI is denied.
Of course, no one contends but that the burden of proof is upon the plaintiff. The important question is: Has he borne the burden ?
Our notes made when reading the testimony obviate the necessity of again perusing over two thousand pages of typewritten testimony. Referring to them, thence the record, we find at page 148 et seq. of the transcript of testimony that Mr. Sweeney, the plaintiff, when a witness in his own behalf, was interrogated upon cross-examination in regard to having all his books of account at the beginning of the trial. He answered as follows:
“I expect from our records it could be worked up but it would take a long time to do it. You must remember too that I am a little short of money, I don’t want to go out and hire a lot of auditors and so on to do this.”
To the question:
“But when you filed the complaint and made your demand under a certain paragraph of your complaint for fifteen thousand three hundred and forty-four dollars, under paragraph 19 of your complaint, — before you could swear to this complaint, swear to your complaint making up those items you had to know it was correct?”
—he answered:
“The bills had all been furnished; we have a duplicate of those bills.” 1
—meaning, as we understand the record, that the bills for the force account work under the contract stipulating the prices had been furnished to the county. *142Frequent reference is made throughout the record to bills for “force account” work.
At page 648 et seq., of the testimony, referring to an item of force account, to the question:
“What was the amount of the work performed at force account in your opinion, or according to your best recollection?”
—he answered: “It was $52.50.”
Whereupon counsel for the county propounded the following:
“Let me ask you, Mr. Sweeney, a question right there. Mr. Sweeney, you wouldn’t be able to testify to that except by looking at this tabulated statement (Plaintiff’s Exhibit 90) that you have in your hand would you, — you don’t know that from your independent recollection?”
To which the witness answered:
“I know about the work being done. I know where the work is, and I know about the work being done, but as to the amount, I wouldn’t know, but I know there was work done there. * *
“ Q. In other words, this testimony that you are giving here is just what you take off of that tabulated statement there that counsel handed you?
“A. A lot of it, — I could tell the circumstances connected with the work, and a lot of it I couldn’t remember the details of it because it is quite a little while ago and there were a lot of changes being made and I couldn’t possibly keep track of all of them over fourteen miles of work. But, in a general way I knew about them and I have specifically talked over those things with the time keeper and the foreman and given them my idea of what their force account work was and that sort of thing.
“Mr. Reames: But as to the amount of the labor on these different jobs, you don’t know that, and you wouldn’t know that unless you read it off of this exhibit that you have there, would you?
*143“The witness: No, sir.
“ (Further questions by Mr. Kerr.)'
“Q. Have you examined in the last few days, Mr. Sweeney, the copies of the force bills rendered under your direction which are on file in your office covering these items in this Plaintiff’s Exhibit ‘90’?
“A. Yes, sir.
“Q. Do these force hills and this recapitulation of the force hills recall to your mind any recollection of any work having been done on this highway with respect to excavating below water?
“A. "Well, of course, it was called to my attention and I knew it was done at the time it was done, and where it was done about, — well it was at a box culvert down on Dollarhide, — Mr. Dexter was in charge of that work, — it was the first box culvert on the line.
“Q. Well, why did you think it was force account instead of work under the contract?
“A. Well, it was under water and we always figure that work under water is something that is usually paid force account for, — as a matter of fact because it wasn’t in the contract as far as I could see, and it is something special, — and the cost is a little more money than ordinary excavation.”
The testimony proceeds:
“Q. What is the next item on this Plaintiff’s Exhibit ‘90’?
“A. Well, retaining walls in under culverts, that was fixing up around the walls.
“Q. And what culverts?
“A. At this same culvert.
“Q. And why do .you think that was properly chargeable to force account?
“A. Well, from the fact that they had to get some material you know, rock and stuff like that to fix up under the wall.
“Q. You remember that work being done?
“A. Yes, sir.
“Q. What was the next item on this Exhibit ‘90’ in ‘ this segregation?
*144“A. Well, that is the moving cement at station 507, that is np at the Dollarhide Bridge, — that was something in the nature of a tent and cement being in the roadway and having to be moved.
“Q. Do you remember it being moved?
“A. Yes, sir.
“Q. And what is the next item?
“A. The next item is for retrimming slopes and borrow from slopes.
“Q. What do you remember about that?
“A. Well, I remember we done a lot of retrimming, quite a lot of retrimming of those places, and we borrowed from slopes. I presume that was up there on the Dollarhide Work, there was a borrow from some slopes there.
“Q. Under whose orders was that work done?
“A. Well, under the engineer’s orders.
“Q. And why did you cause it to he billed as force account?
“A. Because that certainly was extra work, it was extra work for us.
“Q. Why was it extra work?
“A. Because you trim a slope down and then after you have gone, you have to come back and retrim it again, — trimming a slope is a little more expensive because it has to be trimmed to make a kind of a nice appearance, and it costs a little money to do that if you have to go and retrim it ag’ain, why you just have to spend that much more extra money.
“Q. Why did you charge borrow from slopes as force account?
“A. Well, I suppose we had to go and borrow to get material, I suppose to make the road bed.
“Q. And if you borrowed would it be necessary to retrim that slope?
“A. Well, that particular slope I don’t believe it was retrimmed up very much to the best of my recollection, it may, they may have ruffed it up a little bit where they made a borrow there, but in most of the places why the slopes was retrimmed.
*145“Q. Supposing this had been borrowed from a place other than a slope, would it have been force account?
“A. Sir?
“Q. Suppose it had been borrowed from a place other than a slope, would it have been force account?
“A. No, sir.
“Q. Why would it be force account because it was borrowed from a slope?
“A. Well, we had already finished the work there one time and trimmed the slope and then went away and we were ordered to dig into it again.”
Mr. Sweeney testified in a similar manner in relation to the different items of force account work. He certainly claimed to have a good deal of knowledge in regard to the matter. He stated that he was on the work practically all of the time, and was absent on trips to Portland to borrow money for short periods of time. His testimony in regard to the work being done is not contradicted in any way. Indeed as we understand the theory of the defendant during the trial of the cause, it was not that the force account work was not performed by plaintiff, but that he was not entitled to payment therefor at force account prices; that the liquidation should be at the regular contract or unit prices.
Mr. M. 0. Bennett, one of the engineers for the county, in his testimony when a witness in behalf of that defendant, on cross-examination, explained the matter fully as follows:
“Q. Well, these plaintiff’s exhibits that have been put in in connection with your testimony, covering disallowed force bills, some of them contain notations by you, and some of them do not, is that correct?
“A. Yes, sir.
“Q. And those force bills which carry notations by you were force bills which you investigated either per*146sonally or through reports made to you by your assistants ?
“A. Yes, sir.
“Q. And those force bills concerning which you have testified would bear no notations but were disallowed, — what investigation of those did you make if any?
“A. Well, I would say none, I guess.
“Q. Well, why didn’t you make investigation of those?
“A. In my opinion they were obviously not force account.
“Q. Because of the character of the work?
“A. Yes, sir.
“Q. You were back and forth on the ground often enough to determine that question?
“A. I think so.
“Q. Now, in these force bills which you have disallowed and upon which you have put notations, there was no. question in your mind that the work was done, but the question was, that it was work which fell under the contract, that is the work covered by the disallowed part?
“A. Yes, sir.
“Q. The work was done all right, but it was work that was done under the contract’?
“A. Yes, sir.
“Q. And is that true to the other disallowed bills upon which you made no notation?
“A. Yes, sir.
“Q. That is true as to all of the force bills which the plaintiff introduced as well as those particular ones to which you have testified?
“A. Yes, sir.”
We find there was substantive evidence showing that the force account work was done. We cannot accede to the point so strenuously urged by counsel.
It is alleged that certain claims against the plaintiff for materials and supplies furnished in the fur*147therance of the construction of the road in question have been filed in the County Court; that some of these have been acknowledged by plaintiff; that it is conceded by the defendant bank that a portion of such indebtedness is superior to its claim. The amounts of such claims do not indicate a necessity of changing the figures of the decree in favor of the claims of the bank. The obligation of the county, if any, to pay such claims for material, etc., should not be prejudiced by a final decree. In order to protect the rights of all parties interested permission should be granted for the hearing and establishment of any such miscellaneous claims inappropriate supplemental proceedings in this suit, upon the application therefor to the Circuit Court by any of such claimants or by the county within thirty days from the date of the entry of the mandate in the lower court, and before the satisfaction of the decree herein in case such parties so desire. As to the amount and interest thereon found and adjudged to be due to the defendant bank, the payment should-' not be delayed on account of such claims. That in the event any such claim or claims are legally adjudged to be due from plaintiff, the same shall be deducted from the decree in favor of plaintiff in satisfaction thereof, to the extent of such established claims.
With this provision added, we adhere to our former opinion. Affirmed. Rehearing Denied.