(concurring).
I agree with all that is said in the main opinion about “meeting of the minds,” mutual mistake, unilateral mistake, and the effect of the city’s failure to read and understand the contract it entered into with plaintiff.
I do not agree that the contract bindingly entered into, and enforceable in accordance with its proper interpretation, is unambiguous. If on no other basis, ambiguity results from this provision in the specially prepared addendum to the contract: “The Engineer will not proceed with additional phases of the project until authorization from the owner.” It is undisputed such authorization was not forthcoming.
It may be that after extrinsic evidence was received and considered in an effort to resolve this ambiguity,1 the proper conclusion would be that the provision was really a “subject to funding” clause. In my view, however, that conclusion does not, as the majority suggests, emerge from a plain reading of the contract.
On the other hand, Manti City concentrated its defense to plaintiffs action exclusively on theories which would, if accepted, invalidate the contract altogether. It did not plead, in the alternative, that even if the contract were determined to be enforceable, it had no further liability to plaintiff since it had authorized no work beyond the scope of Phase I of the project. The city did not argue ambiguity at trial, and it did not offer extrinsic evidence to assist in the interpretation of ambiguous terms. It cannot raise this theory for the first time on appeal, nor can it properly do so on remand. It follows, as the majority concludes, that remand for imposition of judgment against the ¡city is the appropriate remedy. The amount of damages on remand should be calculated with reference to the contract as the city, in effect, conceded it to be and as the trial judge determined it to be assuming its validity — i.e., a contract for the installation of, and provision of all engineering services for, the complete sewer project.
On remand, however, plaintiffs claimed damages should be scrutinized. Since the city’s attitude as concerned plaintiffs performance beyond Phase I was made known to plaintiff early on — albeit with reference to an inapplicable legal doctrine — the reasonableness of costs incurred by plaintiff in contemplation of its going forward and the timeliness and sufficiency of plaintiffs mitigation efforts should be evaluated with considerable care.
HOWE, J., concurs in the concurring opinion of ORME, J. STEWART, Associate C.J., does not participate herein. GREGORY K. ORME, Court of Appeals Judge, sat.. See, e.g., Kimball v. Campbell, 699 P.2d 714, 716 (Utah 1985); Seashore's Inc. v. Hancey, 738 P.2d 645, 647 (Utah Ct.App.1987).