145 Iowa 424 | Iowa | 1910
It seems that, after the plaintiff had sunk the twelve-inch pipe in the well seventy-five feet, a coupling slipped down on one section of the pipe four or five inches, rendering the particular- section of pipe useless, and that, before the work could be continued, this pipe must have been removed. The sole issue is whether under the terms of the contract as pleaded defendant was required to remove or cause to be removed this pipe so as to enable plaintiff to proceed with the work. According to the petition, the clause in the contract, “it [the city] will assume all risk on the twelve-inch pipe,” had a trade meaning that the party so assuming is to “replace all or any pipe that may prove unfitted and unavailable for use in properly
But there is another reason for saying that no cause of action was stated. Immediately after the clause in controversy is a provision that the city “at the completion of the well will immediately pass upon the construction of said well, and, if satisfactory, will pay for the same according to.the tenor of this contract.” No argument is required to show that the removal of the pipe was involved in and essential to the digging of the well as proposed, and, conceding that defendant must have borne the expense of such removal, here is an express provision fixing the time for the payment when the well was completed.. Until then, the expense for having done so, according to the tenor of the contract, was not due.
The petition alleges no breach of any obligation on the part of the city, and for this reason the demurrer was rightly sustained. — Affirmed.