concurring specially in part:
I concur in the majority opinion except that portion dealing with the appellant’s claim that the trial court’s findings did not adequately address the issue of appellant’s claim of alleged double recovery. I would remand the cause to the trial court to make express findings on the issue of double recovery raised by the appellant.
BISTLINE, Justice,concurring in the affirmance of the judgment below.
Of the four enumerated issues presented, one in particular seems to be of consequence: Whether the trial court erred in failing to interpret the contract according to its clear and unambiguous language, thus allowing Haener to recover sums in excess of the contract price of $4.10 per cubic yard of excavation which was stated in the contract to require the removal of “all material of whatever description.” The Highway District, in arguing this issue, repeated a portion of its trial brief:
The basic contract is a “unit” contract, whereby plaintiff, as the winning bidder, agreed to perform the project on a cubic-yard basis as far as the trench excavation is concerned. In item number 8 of the bid, which was incorporated into the contract, plaintiff agreed to excavate the trench for the laying of the pipe at the rate of $4.10 per cubic yard.
Page 4 of the contract incorporates into the contract the Ada County Highway District’s standard specifications. That section of the standard specifications *175which applies to trench excavation is found at page 114, section 300 entitled “Trench Excavation and Backfill for Underground Pipelines.” Section 300.01 states:
“This section covers excavation, trenching and backfilling for pipe lines and appurtenances complete. This item shall consist of all necessary-clearing, grubbing, and site preparation; removal of all material of whatever description that may be encountered; removal and disposal of debris; handling and storage of materials to be used for fill and backfill; all necessary bracing, shoring and protection; pumping and dewatering as necessary; all backfill, preparation of subgrades; and final grading, dressing, and cleanup of site.” (Emphasis added.)
Thus, under the terms of the contract agreement itself, plaintiff is obligated to remove all material from the trench within the confines of the contract price.
It is thus seen that this was primarily the defense which the Highway District relied upon at trial, and this is primarily the contention it pursues on its appeal. In its appellate brief, it argues:
Moreover, the contract is unambiguous in defining exactly what Haener’s obligation was with respect to excavation, to-wit, “removal of all material of whatever description that may be encountered.” (Exhibit D-D at p. 114, section 300.01.) This unambiguous contract provision was admittedly part of the agreement between the parties____
Thus, upon encountering the rails and railroad bed material, Haener was obligated under the clear and unambiguous terms of the contract to remove the rails at the unit price agreed upon of $4.10 per cubic yard. Appellant’s Brief, pp. 15-16.
Haener in his respondent’s brief meets the issue head-on by referring us to unchallenged findings of fact made by Judge Bail:
6. On June 22, 1979 the ACHD issued a Notice to Proceed to J & D Construction Co., authorizing them to begin the construction of the storm drain. On June 28, 1979, work was begun. Prior to beginning the actual construction there was a pre-construction conference between J & D Construction and members of the ACHD. There was no mention in the specifications for the project of the possibility that railroad tracks would be encountered nor did the plaintiff know of the tracks prior to the formation of the contract although some employees of the ACHD were aware that it was a possibility before the formation of the contract. However, they did not tell the plaintiff of that possibility prior to the pre-construction meeting.
7. On July 3, 1979, the plaintiff encountered railroad tracks embedded under the surface of State Street in about 2 feet of concrete. He did not know of the presence of the tracks until then nor of the problems they would pose.
R., p. 58.
Two conclusions of law, which in my view would more aptly bear the label of findings, state:
3. The plaintiff encountered materially different subsoil conditions which he, justifiably, did not anticipate.
4. The plaintiff and defendant mutually agreed that the plaintiff would perform the additional work necessary to remove the rails and the plaintiff would be compensated for it.
R., p. 61.
Haener argues for the applicability of this statement in Utah Construction Co. v. Mcllwee, 45 Idaho 707, 719, 266 P. 1094, 1097 (1928):
Ordinarily, a contract carrying plans and specifications as a part thereof requires construction according to such plans and specifications, and does not obligate the contractor to extra and unforeseen work, nor to anticipate injurious results of such construction, or to provide against matters not set forth in the contract or plans and specifications. (Emphasis added.)
That statement of the law accords with that which has always been my own understanding. It is certainly a general state*176ment of the law. See 17A C.J.S. 404 Contracts § 371(3). Haener also brings to our attention the case. of Haggert Construction Co. v. State of Montana Highway Commission, 149 Mont. 422, 427 P.2d 686 (1967). That case is basically the same as this, other than that here the Highway District while knowing of the possibility of long-buried steel track made no such disclosure to Haener until after the contract was executed, and in Haggert the contract was entered into on the basis of Highway Commission disclosure of information as to available materials sites which turned out to contain gravel not suitable for the intended use.
The Highway Commission relied on an exculpatory provision of the contract which stated:
“The data shown herein represents condensed information from the Laboratories and as reported by the Field Forces regarding the source of surfacing materials for this project. It does not constitute a guarantee by the State Highway Commission of the quality or quantity of the material as shown * * Haggert, supra, 427 P.2d at 687.
The Montana Supreme Court’s view, however, was:
There is nothing to show that appellant expects less than complete reliance on its materials reports.
If the State Highway Commission were allowed to rely on the exculpatory-provisions of the contract, the purpose for which such reports are offered would be sadly frustrated, if not totally destroyed. No prudent contractor would proceed in reliance on such reports at his absolute peril; the necessity to guard against unforeseen deficiencies would result in much higher bids than conditions would normally warrant.
Although appellant cites some authority to the contrary, the position which the court takes here is amply supported in case law. In Sandkay Const. Co. v. State Highway Commission, 145 Mont. 180, 184, 399 P.2d 1002, 1005, this question was posed: “Or to state it with more particularity, where plans and estimates or specifications are used as a basis for bids, is a contractor who has been led to believe that the conditions indicated in such plans exist, able to rely on them and recover for expenses necessary by conditions being other than as represented by such plans?” We answered in the affirmative.
We agree with the California Supreme Court that, “The crucial question is thus one of justified reliance”____
... In other words we will look to “justifiable reliance”. If appellants were to prevail here, the State of Montana would be enriched to the extent of additional work done by Haggart, without showing any negligence or misconduct on the part of the contractor.
Id., at 427 P.2d 687-89.
In Hash v. J.R. Sundling & Son, Inc., 150 Mont. 388, 436 P.2d 83, 86 (1967), the Montana Court restated the rule of Haggart:
Additionally, it is clear that under appropriate circumstances, the contractor who encounters substantially different conditions in performing a construction contract from those contemplated and set forth in the plans and specifications contained therein may be entitled to increased compensation for the additional work. See generally 76 A.L.R. 268; 85 A.L.R.2d 212. The test of whether or not such contractor is entitled to additional compensation is whether or not he justifiably relied upon the plans and specifications for the construction in making his bid and entering into the contract. Sandkay Const. Co. v. The State Highway Commission, 145 Mont. 180, 399 P.2d 1002; Haggart Const. Co. v. State of Montana, [149 Mont. 422,] 427 P.2d 686 (Mont.1967). The reason for this rule is that if unanticipated conditions not reasonably foreseeable are actually encountered in the work and vary substantially from anticipated conditions reasonably foreseeable by the parties at the time they entered into the contract, *177the contractor is performing an entirely different contract than the one agreed upon and in such case is entitled to the reasonable value of his additional services.
Of the controversy in Hash, the Montana court said:
Certainly Hash was entitled to rely upon the plans and specifications for the job, the profiles of the subgrade, and the grade stakes in determining the depth of the required excavation in submitting his bid and entering into the excavation subcontract, unless there was something therein that would indicate that he should have reasonably foreseen and anticipated the conditions actually encountered. This is the crux of the matter in the instant case and is clearly a factual inquiry.
It appears reasonably clear to us that the foreseeability of conditions actually encountered is purely and simply a question of fact and the trial court having determined such fact adversely to Sundling based upon conflicting evidence has thus foreclosed Sundling’s contentions herein. As a consequence and because the trial court has determined that the conditions actually encountered were not reasonably foreseeable and could not have been anticipated by Hash, Hash was justifiably entitled to rely upon the plans and specifications for the project, the profiles of the subgrade and the grade stakes in bidding on the subcontract for excavation. Thus, when Hash was called upon to perform an unexpected type of excavation outside the scope of the contract, he became entitled to the reasonable value of his additional work.
Id., at 86-87.
It is to be noted that the Montana court saw the issue tried below “clearly a factual inquiry,” and also saw that “foreseeability of conditions actually encountered is purely and simply a question of fact.” Of Judge Bail’s conclusions 6 and 7, I have already mentioned that they were indeed factual determinations, not conclusions, but unchallenged in either event. Even were the same challenged as factual determinations, as in Hash both are supported by competent and substantial evidence. When Judge Bail, the trier of the facts, made those findings, the law suit was over. Clearly, the judge found as a fact that, notwithstanding language in the contract that excavation included “removal of all material of whatever description that may be encountered,” that it was neither foreseeable nor justifiably anticipated by Haener in entering into the contract to remove subsurface materials that on the price bid he would be required to demolish and remove a long-buried steel and concrete railroad bed.
Furthermore, as noted in Hash, and as a matter of common knowledge, “material” or “materials” in the highway construction business are words of art — pertaining to such as gravel, sand, pea rock, and plain dirt and/or clay fill. Those who regularly ply the highways have seen many state signs proclaiming such accumulations as Material Sites. Steel rails are not materials.
Where the Highway District lost in district court on what was for the most part a factual inquiry, it seems to me that so long as the court remains committed to its decision that I.C. § 12-121 allows for attorney’s fees on appeal, there is no reason whatever for not awarding such here where the Highway District’s appeal is simply a request for findings differing from those made by the trial court.
Finally, although the opinion authored by Justice Shepard reads well, I fail to understand why the Court should not stay with the briefs of counsel. Hence, I am unable to understand the necessity for the excursion into the realm of ambiguity of contract. I do not see that the parties claim any ambiguity. I do not see that there is any ambiguity. I do not see that there was not a meeting of the minds. In fact, there was a meeting — but the parties never attempted a meeting of the minds on removal of the buried tracks — something of which *178Haener was totally unaware, and kept so disadvantaged by the Highway District’s failure to disclose.
I do agree with Justice Shepard’s disposition of the damages issues. Accordingly, my vote is to affirm the judgment and award costs and attorney’s fees to Haener.