John A. Carlson, Inc. v. South Dakota St. Hwy. Com'n

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202 N.W.2d 867 (1972)

JOHN A. CARLSON, INC., a corporation, Plaintiff and Appellant, v. SOUTH DAKOTA STATE HIGHWAY COMMISSION, consisting of Richard F. Kneip, et al., Defendants and Respondents.

No. 11043.

Supreme Court of South Dakota.

December 12, 1972.

Rehearing Denied January 17, 1973.

Tidball, Blando & Kemnitz and Donald A. Haggar, Pierre, for plaintiff and appellant.

Carl W. Quist, Highway Asst. Atty. Gen., and Larry M. Von Wald, Sp. Asst. Atty. Gen., Pierre, for defendants and respondents.

MEMORANDUM OPINION

HANSON, Presiding Judge.

This is an action for damages for breach of a contract entered into by plaintiff and the South Dakota State Highway Commission for the production of a gravel stockpile for use on U. S. Highway 281 in Spink County. The claimed damages in the amount of $84,874.00 are all in excess of and in addition to the contract price of the work agreed to be performed.

Plaintiff has appealed from an order dismissing its action. The issues involve the meaning and effect of SDCL 31-2-34 to 31-2-39 inclusive as limited by Sections 8 and 9, Article XI of the South Dakota Constitution. The same issues were recently considered by this court in the case of G. H. *868 Lindekugel & Sons, Inc. v. South Dakota State Highway Commission et al., S.D., 202 N.W.2d 125 (1972), and were all determined adversely to plaintiff's contentions and claims herein.

Accordingly, the order appealed from is affirmed.

BIEGELMEIER and WINANS, JJ., concur.

WOLLMAN and DOYLE, JJ., dissent.