43 Ind. App. 167 | Ind. Ct. App. | 1909
By this action appellant sought to collect from appellee $750 on account of a written contract entered into between appellant and appellee for the improvement of a certain street in the city of Wabash pursuant to the
The complaint was in one paragraph, to which a demurrer for want of facts was sustained. Plaintiff refused to plead further, and judgment was rendered against it and in favor of appellee for costs.
Prom the complaint it appears that the contract in question called for the improvement of a certain portion of Wabash street in the city of Wabash, according to certain plans and. specifications relative thereto and made a part of said contract. Neither the plans, specifications, demand for bids, nor appellant’s bid or the acceptance of its bid, contains any provision fixing a certain time for the completion of the work, but the written contract subsequently entered into did provide that
“said improvement shall be finally and in all respects completed on or before October 1, 1901, and the party of the first part agrees to pay and forfeit to the city of Wabash, as liquidated damages, the sum of $25 for each and every day after said October 1,1901, until said work is finally completed and ready for acceptance by the party of the second part. ’ ’
Said specifications, among other provisions, contained the following:
“The work shall be commenced and carried on to completion at such points as the city engineer may designate. No square shall be blocked except where the contractor is actually working, and each square, as soon as the pavement is laid, at the discretion of the engineer, shall bo thrown open to public use; but such openings or using of the street shall not be deemed or held to be an acceptance of any part of the work. The engineer from time to time may suspend the work at certain places, or altogether, if, in his opinion, public need requires it; but said engineer shall not have the right to stop the work altogether for more than one week at a time, excepting that, whenever in the opinion of said engineer the weather is not suitable for doing work, he may cause the work to be suspended.”
The parties to this appeal by their briefs, under the heading “Propositions or Points” (rules of the Supreme and Appellate Courts, §22, cl. 5), present but one question, and that question rests on the effect to be given that stipulation in the contract relating to the time when the work shall be completed and ready for acceptance. If this stipulation is to be construed as fixing a penalty, the judgment must be reversed. If it is a ease of liquidated damages the judgment must be affirmed.
In the ease last cited the opinion discloses that the common council had instructed the mayor on behalf of the city to enter into a certain contract, and the question in that ease was whether the mayor had exceeded his authority, the contract as signed not having been approved by the council.
In the case before us there is no claim that the contract was not duly entered into on the part of the city, or that it was not the contract of appellant. Appellant proceeded under the contract. All the rights it claimed were by virtue of the contract, and any burden it may have legally incurred thereby was enforceable unless released in some manner authorized by law.
While the preliminary proceedings had by the city did not call for a time limit for the completion of the work, yet upon the theory that cities have no right to obstruct streets for an unreasonable length of time in making public improvements (Cummins v. City of Seymour [1881], 79 Ind. 491, 495), and in the making of such improvements they act ministerially, and their negligence may be the basis of an action (Murphy v. City of Indianapolis [1902], 158 Ind. 238); and being required by law to exercise reasonable care to keep the streets in a safe condition for travel (City of Muncie v. Hey [1905], 164 Ind. 570; City of Vincennes v. Spees [1905], 35 Ind. App. 389), and having the power to contract for the making of the improvements, carries with it the implied power necessary to make this contract effective. Boyce v. Tuhey (1904), 163 Ind. 202. The council, having in mind these, as well as other well-settled principles
The case of Gulick v. Connely, supra, cited by appellant was one where the property owner sought to have his assessment reduced by reason of a provision in the contract which provided “that five per cent per month should be deducted from the assessment of all work done after the extension of the time of the completion of the contract.” Held, that the time to enforce the provision was Avlien the last assessment ivas allowed, and that the provision was enforceable or not at the option of the city.
In the case of Hall v. Crowley (1862), 5 Allen (Mass.) 304, 81 Am. Dec. 745, the court had under consideration the effect of the word “forfeit” as used in a contract containing the following clause: “For each and every day’s delay in the completion of said houses after December 1, said Hall is to forfeit $5.” The court, after concluding that the sum named was reasonable, and should be treated as liquidated damages and was so intended, said: “In cases of this nature, where the intent of the parties is so clear, the use of the word ‘forfeit’ in the clause providing for damages in ease of a breach is not regarded as of much weight.” Citing Lynde v. Thompson (1861), 2 Allen 456.
This court in the ease of Merica v. Burget, supra, followed the rule declared in Jaqua v. Headington (1888), 114 Ind. 309, wherein it was said that “where the stun named is declared to be fixed as liquidated damages, is not greatly disproportionate to the loss that may result from a breach, and the damages are not measurable by any exact pecuniary standard, the sum designated will be deemed to be stipulated damages.” Texas, etc., R. Co. v. Rust (1883), 19 Fed. 239, 241; Studabaker v. White (1869), 31 Ind. 211, 99 Am. Dec. 628.
In Nilson v. Jonesboro (1893), 57 Ark. 168, 20 S. W. 1093, the town had granted to Nilson and others the right, for a term of years, to lay tracks and operate a street railroad in certain streets within the town. The contract contained a stipulation requiring the completion of the road within a specified time; For the breach of that stipulation it was
Appellant insists that under the part-performance rule applicable to contracts of the character in question, the sum named should be construed as a penalty and not as liquidated damages. The pleaded facts do not bring the case within that rule. So far as appears, a greater part of this improvement may have been done after the time fixed in the contract for its completion.
Judgment affirmed.