Northern Improvement Co. v. South Dakota State Highway Commission

WOLLMAN, Justice

(concurring in part, dissenting in part).

I agree that plaintiff has no claim under the contract for extra compensation for extra work done. I would hold, however, that the concepts of waiver and estoppel are not available to circumvent the terms of the contract. In the case of England v. State, 61 S.D. 132, 246 N.W. 628, plaintiff argued that its complaint to the district and state highway engineers that certain work was outside the scope of the contract was sufficient to avoid a requirement that a settle*215ment for such work be agreed upon in writing between the contractor and the commission prior to the commencement of the work. In spite of plaintiff’s allegation that it had been misled by certain “specifications” proposed by the engineer, the court dismissed plaintiff’s complaint for failure to state a claim. In Kansas City Bridge Co. v. State, 61 S.D. 580, 250 N.W. 343, this court held that acts of the state highway engineer could not form the basis of an alleged waiver of a requirement of a written modification agreement between the commission and the contractor. See also Griffis v. State, 69 S.D. 439, 11 N.W.2d 138; Alexander v. State, 74 S.D. 593, 57 N.W.2d 121. I perceive no compelling reason to depart from the rule of strict adherence to the terms of a public contract that we have laid down in these cases. Those who contract with the state are charged with notice of the strict limitations on the part of the state to enter into highway construction contracts. State Highway Commission v. J. H. Beckman Construction Co., 84 S.D. 337, 171 N.W.2d 504. Plaintiff could have preserved its right to claim additional compensation by complying with the provisions of the contract. That it may have had to suffer an intransigent project engineer did not excuse it from seeking modifications in accordance with the terms of the contract. I fear that the holding in this case may lead to numerous claims for additional compensation in contravention of the specific provisions of highway construction contracts. We are, after all, writing law that does not affect the average citizen’s contractual relationship with an impersonal bureaucracy but rather is of significance to a group of highly sophisticated entrepreneurs who voluntarily choose to enter into these highly detailed, strictly construed contracts with the state. Cf. State Department of Social Services v. Rodvik, S.D., 264 N.W.2d 898.

I would reverse that portion of the judgment appealed from.