(concurring in part, dissenting in part).
I agree that the contract in question was not unenforceable for lack of mutuality of obligation and that it was not restricted to 21,080 square feet of repair work or to completion within one construction season. I strongly disagree, however, with the holding that PSI could have unilaterally relieved itself of any further obligation on the Lincoln County project by refusing to sign any further change orders.
There is no question but that no one, including the state’s engineers and project supervisors, knew at the outset of the contract exactly how much repair work would ultimately be needed. Indeed, that is why the state took pains to modify its standard specifications by including a special paragraph that provided that the Department of Highways reserved the right to increase the quantity of the work to be done, that such increases should not invalidate the contract, and that the contractor agreed to accept the work as altered. There was no testimony from anyone in a position of authority within the Highway Department to the effect that PSI would have been relieved of its obligation to enter into construction change order number 5 had it merely asked for such relief. Moreover, as I read the record Mr. Reese did not testify that PSI would have terminated the Lincoln-Minnehaha County project had the state not agreed to increase the Union County project. Rather, he testified that he informed Highway Department officials in August of 1973 that if the Union County project was to be terminated by the state, then the Lincoln County project should also be terminated. The difference in the two interpretations of Mr. Reese’s testimony involves more than a se-mantical quibble, for under the interpretation given by the majority opinion PSI is cast in the role of a bad faith manipulator who sought to benefit itself at the expense *580of its subcontractor, whereas under the interpretation that I believe the record compels, PSI was merely seeking equitable treatment from the state.
Because I believe that PSI was bound by the change order in question, I would hold that Teigen was also bound to complete the work under its subcontract. That Teigen was responsible for its own delays in completing the project seems abundantly clear from the testimony of the state inspector who was on the scene to the effect that Teigen’s crew members were poorly trained and supervised (Teigen’s job superintendent was a former railroader with limited construction experience), that they frequently left the job site to drink coffee in nearby cafes, that they drank beer during working hours, that Teigen’s equipment was dilapidated and frequently out of commission, and that in general the work was not carried out efficiently. Indeed, Teigen’s job foreman testified that because the Lincoln County and Minnehaha County crews were alternated every Monday morning to equalize the pay differential on the two projects, there was a good deal of confusion regarding job responsibilities and the like. He acknowledged that it had come to his attention that crew members were drinking on the job. In a word, then, the only fair inference to be drawn from the evidence is that Teigen could not possibly have completed the project in one season — and this through no fault of PSI’s.
As the majority opinion points out, this should have been a rather simple matter to decide. As it has turned out, however, this has been a troublesome case. It was pleaded and tried on one theory, decided on another theory, and now affirmed on appeal on still a third theory.
I would reverse and remand with directions to enter judgment for PSI.