117 Iowa 687 | Iowa | 1900
The defendant’s counterclaim is based on the ground that appellant’s assignor did not furnish the quality of brick required by the contract. To this the plaintiff replies that the brick used “were duly inspected by the defendant, and accepted” “before the same ‘were placed in the said paving,” and “that said brick were not manufactured by plaintiff or his assignor, but were purchased on the market, and paid for, * * * because said brick were inspected and accepted by defendant,” and that the work was inspected, accepted, and paid for after its completion. ” The specifications for the work in question were made a part of the contract, and one clause thereof is as follows: “And no work shall be considered as accepted which may be defective in its construction, although the engineer may have failed to point out the defect during construction and before final acceptance of the work, and any work condemned by the engineer as defective or improperly done shall be taken up and rebuilt, or the defects otherwise remedied, as may be directed by the engineer and committee on paving. ” The contract further provided that the brick used for the top course should be of the very best and hardest selected brick, specially burned for street paving, and, further, that all brick used on that street should be equal to the best quality of Galesburg paving brick. While the work was in progress, the evidence tends to show that some inspection was made of the brick used, and that Borne that had been shopped in for use were rejected even
There was a conflict in the testimony as to the quality of the brick used, but we think the trial court was fully justified in finding that a large part of them were not up to the grade required by the contract. In fact, the plaintiff himself, who was a member of the contracting firm,, says that some of the brick used were the “most defective-he had ever seen.” It is clear that, under the terms of this contract, nothing but a final acceptance of the completed work would constitute, a waiver as to the material used; .hence the cases cited by the appellant to the effect that a failure to object will be presumed an approval, and that the city would be bound by errors in judgment of its inspector, and that acceptance by inspection is final, are not in point.
The only point remaining to consider is whether the city did finally accept the work,, and on this there is a conflict in the evidence. The record shows the work to have been completed late in the fall of 1891, at just what time does not appear. There is evidence tending to show, however, that an inspection of the completed work was mutually- temporarily abandoned on account of snow thereon, and that it was not finally inspected until some time later. On the 4th of February, however, the city council passed a resolution condemning the pavement, and ordering payment therefor withheld until the poor brick were taken out, and others of the quality required by the contract put in. This resolution seems in some way to have reached the ears of the contractors, for the plaintiff so testifies, and the letter following was soon thereafter received by the city authorities.: “Davenport, Iowa, February 16th, 1892. S. F. Smith, Chairman of the Paving Committee of the City of Davenport — Dear Sir: Understanding that some parties make the statement that' some of the top.
But-plaintiff says that he and his partner afterwards went to Davenport, and complied with the terms of his contract and letter; but his own testimony does not show any attempt on his part to replace the large number of soft brick that had been put in the pavement. He says that he raised some depressed places and repaired around the car tracks, where the brick had been forced up by the ties. No further work is shown, nor is it shown that the city accepted this work as a compliance with his contract. ■On the other hand, it appears that the plaintiff had full ^knowledge of the city’s claim that from one to two-thirds •of the brick used by them were unfit for paving purposes. 'The resolution of February 4th was very broad, and of this the plaintiff says he knew. Yerbal complaint was also