Darrell J. Didericksen & Sons v. Magna

BURNS, District Judge: The facts material to this decision involve a plaintiff contractor who entered into a sewer construction contract in August, 1976, with the defendant, Magna Water and Sewer Improvement District, for the relocation of the defendants sewer line to accommodate a four-lane highway to be constructed by the third-party defendant, Utah State Department of Transportation. Magna was to be reimbursed for all costs incurred by reason of the sewer relocation project by the DOT. After the contract was in force, the Contractor became aware of other construction in the subject area by the freeway construction people (DOT) and was further requested by Magna to commence construction at a different starting point (in the middle of the project rather than at the low end of the project) to coincide with such simultaneous work for the highway construction. Although promised, no change orders for such contract modification were ever forthcoming, and the Contractor proceeded with its work as originally outlined and performed thereunder until the project came into what the trial court found was a direct conflict with the DOT highway project and could not be performed as the contract specifications were written. After notice, the Contractor ceased operation when no change order was forthcoming, and the trial court found a substantial change in the nature of the project had occurred, justifying the Contractor to abandon further performance and maintain this suit for damages.