Barber Asphalt Paving Co. v. City of St. Paul, 224 F. 842

Barber Asphalt Paving Co. v. City of St. Paul

224 F. 842 | 8th Cir. | 1915

TRIEBER, District Judge

(after stating the facts as above). On behalf of the paving company, it is insisted that by reason of that provision of the contracts which reads, “if during the said term of ten years it shall be found that the pavement is defective from overburning or improper mixing, or any other preventable cause, or that the work has been done in an unskillful manner, the party of the first part hereto (the paving company) shall at its own proper cost and expense, upon the order of the commissioner of public works of the party of the second part (the city) entirely remove any such defective portion of the pavement, and replace the same to the satisfaction of said commissioner of public works, who shall be the sole and final judge as to whether or not the pavement is in good and sufficient order and condition during the continuance of and at the end of the said term of ten years,” the paving company was only required to repair them at its own expense for these causes and none other, and it is now claimed that the repairs for which this action has been instituted were made necessary by reason of: (1) The leakage of gas from gas mains; (2) the action of street railway tracks; (3) excessive sprinkling of the streets; (4) dirt permitted to lie in the gutters; (5) insufficient crowning on some streets ; (6) the nature of the subsoil of some of the streets.

[ 11 If the provision above quoted were the only one in the contract providing for a guaranty of the work, the contention of the paving company would probably have some basis to rest on; but it is elementary that in construing a contract every part of it must be considered. Applying this rule, it is clearly apparent that the first part in that paragraph of the contracts refers to the guaranty for the maintenance and repairs of the pavement for the period of ten years, no matter for what causes, while the other provision refers to the workmanship in putting the pavement down. The guaranty provision only required repairs, while the other applies to the work itself, which if found defective from “overburning or improper mixing, or any other preventable cause, or that the work has been done in an unskillful manner,” the paving company obligated itself to “entirely remove such defective portions and replace the same to the satisfaction of the commissioner of public works of the city, at its own cost.” The language used is clear and without ambiguity that the paving company is to keep the pavements in good and sufficient repair during the term of ten years, the only exceptions being such repairs as were made necessary by the tearing up of the pavement by the public service companies for the purpose of laying or repairing mains for gas, sewer and water, and the right to make such repairs was' granted to the paving company exclusively, which was to receive a higher compensation therefor than that paid by the city under the contract, and was to be paid by the public service companies whose acts made the repairs necessary.

*846[2, 3] The paving company, at the time it entered into the contracts,knew of the gas mains, and that there would naturally be some leakage of gas, and at times a considerable escape by reason of pipes breaking or joints loosening. It knew of the street railway tracks on the streets which it had contracted to pave; it knew from the specifications what the crowns on the'streets would be, and whether they were sufficient or insufficient; and it was bound to take notice of the nature of the subsoil of the streets, as the specifications expressly provided for it. If the gas company was negligent in permitting gas to escape, which caused injury to the pavement, it may be liable to the plaintiff; but there is nothing in the contracts which imposes that liability on the city. These facts being well known to the plaintiff when it -entered into the contracts, it cannot now be heard to claim compensation for repairs made necessary by them. That leakage of gas from the mains, under a contract such as this, does not relieve the paving company from its contract to repair was expressly determined in the City of Akron v. Barber Asphalt Paving Co., 171 Fed. 29, 36, 96 C. C. A. 271, 278; Barber Asphalt Paving Co. v. Louisville, 123 Ky. 687, 97 S. W. 31, 9 L. R. A. (N. S.) 154; and Brown v. Jenks, 98 Cal. 10, 32 Pac. 701.

[4] But even if there had been some ambiguity in the language used in the contracts the construction placed upon them by both parties during all that time, from 1901 until the institution of this suit in November, 1912, that these repairs had to be made by the paving company at its own expense, would effectually remove the ambiguity. The law is well settled that, if there is any doubt or ambiguity in a contract arising from the words employed, it is effectually removed by the practical construction continuously put upon it by the parties for so long a period as was done in this case. Chicago v. Seldon, 9 Wall. 50, 19 L. Ed. 594; Brooklyn Ins. Co. v. Dutcher, 95 U. S. 269, 24 L. Ed. 410; Topliff v. Topliff, 122 U. S. 121, 7 Sup. Ct 1057, 30 L. Ed. 1110; Manhattan Life Ins. Co. v. Wright, 126 Fed. 82, 61 C. C. A. 138; Michigan Home Colony Co. v. Tabor, 141 Fed. 332, 72 C. C. A. 480; Uinta Tunnel, Mining & Transportation Co. v. Ajax Mining Co., 141 Fed. 563, 73 C. C. A. 35; Cook v. Foley, 152 Fed. 41, 81 C. C. A. 237; Guaranty Trust Co. v. Koehler, 195 Fed. 669, 115 C. C. A. 475.

We are clearly of the opinion that the learned trial judge correctly interpreted the terms of the contract and committed no error in directing a verdict for the defendant.

Affirmed.