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SAVAGE v. PETER KIEWIT SONS' CO.

249 Or. 147 (1968)

432 P.2d 519

437 P.2d 487

SAVAGE, Respondent and cross appellant, v. PETER KIEWIT SONS' CO., Respondent, STATE HIGHWAY COMMISSION, Appellant and cross respondent.

Supreme Court of Oregon.

Reversed with instructions October 13, 1967.

Former opinion modified Petition for rehearing denied February 21, 1968.

Attorney(s) appearing for the Case

Alan H. Johansen, Assistant Attorney General, Salem, argued the cause for appellant and cross respondent. On the briefs were Robert Y. Thornton, Attorney General, G.E. Rohde, Assistant Attorney General and Chief Counsel for Oregon State Highway Commission, and J. Robert Patterson, Assistant Attorney General, Salem.

Bruce M. Hall, Portland, argued the cause for respondent and cross appellant Savage. On the brief were Bonyhadi & Hall, Portland.

Cleveland C. Cory, Portland, filed a brief for respondent Peter Kiewit Sons' Co.

Bruce M. Hall and Bonyhadi & Hall, Portland, for the petition.

Cleveland C. Cory, Portland, contra.

Before PERRY, Chief Justice, and SLOAN, O'CONNELL, GOODWIN, DENECKE, HOLMAN and LUSK, Justices.

REVERSED WITH INSTRUCTIONS.

GOODWIN, J.

1. The Oregon State Highway Commission appeals from a declaratory decree allowing compensation to a subcontractor for extraordinary expenses incurred in performing his contract. As this suit was tried below as a suit in equity, we have considered the record de novo pursuant to ORS 19.125 (3).

The defendant Kiewit was the prime contractor with the Highway Commission for the construction of the West Marquam...

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