152 Iowa 354 | Iowa | 1911
The case was before us on a former appeal, the opinion being found in 136 Iowa, 243. Prom the opinion in' that case, in which a judgment in favor of the plaintiff was reversed, it appears that the reversal was based on the ground that the trial court failed to submit to the jury the question whether plaintiff’s claim was presented to the board of public works in accordance with the provisions of the contract before the allowance and payment by the city of the final estimate under the contract; it being provided in the contract as follows: “All claims against the city of Des Moines for damages growing out of the performance of this contract, or for any tort, or alleged wrongful act of the city, shall be presented to the board of public works of the city of Des Moines by the party of the first part, and such claims must be adjusted and settled and a release in full for all damages against the city must be signed by the party of the first part, before the estimates above specified will be allowed, or other payments made under this contract, and any claim not so presented shall be deemed waived and action thereon barred.” There was in the contract a provision quoted in
The contentions for the city now are that, first, this addendum was added to the contract without authority of law; and, second, that, even if this addendum was valid, the claim for compensation thereunder was not presented to the board of public works as required by the portion of the contract above set out.
The argument that the addendum was invalid is predicated upon the thought that the rights and liabilities of the plaintiff must be determined by the plans and specifications under which its bid was made, and that it was not' competent afterwards to add to or vary such rights or liabilities by mutual contract between the parties. It may be conceded that under statutes requiring contracts
As has already been indicated, while the plans and specifications were to be on file on and after December 1, the contract was not to be on file until December 14, on which day, at 10 o’clock a. m., the sealed proposals must be on file, and it is not to be assumed that the sealed proposals were to be made with reference to the terms of the contract except as to amounts and times of payment.
We now come to the question whether under thp contract plaintiff was entitled to any additional compensation, and, if so, whether its claim for such compensation was duly made.
Conceding, for the purposes of this appeal, that the testimony here referred to is sufficient to sustain a -finding by .the jury that the claim in question had been presented to the board of public works, the question is certainly not so free from doubt that the court would be justified in reaching that conclusion as a matter of law, and withhold the issue from the jury. Handing a written claim to a member of the board on the street or in his private office is not of itself a presentation to the'board. We are thus brought to the consideration of the single question whether, had this issue been properly submitted to the jury and the verdict thereon had been in favor of appellant, it would afford a sufficient defense to appellee’s claim. It was entirely competent for the parties in making their contract to hedge the possibility of claims for extra compensation with all such reasonable restrictions as they might devise or agree upon. Experience has shown that such claims are the fruitful source of controversy and litigation, and it was not unreasonable to provide that, before the final settlement and payment of the contract price, the contractor should present to the proper authority its claim of every kind growing out of the work which it had undertaken to
On the second trial of the case, after the reversal here, the trial court held as a matter of law that plaintiff did not comply with the provisions of the contract before quoted, and that no waiver on the part of the city or the board of public works was shown. The first appeal was by the city, and this one is by the plaintiff. It was not necessary on the first appeal to say whether or not the plaintiff had in fact complied with the terms of the contract, for in that case it did not appear that any intermediate estimates were made nor were any relied upon. It was enough to find a conflict in the testimony or in the inferences to be drawn therefrom to take the case to the jury. Nothing was said on the former appeal on the question of defendant’s waiver of these provisions of -the contract manifestly intended for its benefit. Moreover, when the case was first before us, it did not appear that several estimates had been made and warrants issued after the accrual of plaintiff’s claim. The only estimate shown or relied upon in that case was the final one. In the former case, as in this one, plaintiff pleaded a waiver on the part of the city of the provisions of the contract with reference to the filing of claims for extras; and, while nothing was said in the former opinion regarding this issue, it is manifest that nothing was involved on that appeal save the question of waiver of the filing of the claim before the final estimate was made.
There is testimony tending to show a presentation of this matter to the committee to which reference Was made. It is substantially as follows: One of plaintiff’s witnesses testified:
The Capital City Brick & Pipe Company made claim for compensation in addition to the contract price before the bridge was completed, and about the time of the completion of the bridge in 1903. The statement of the claim amounting to at that time $28,000, was presented to the city council, and was taken up and referred to the bridge and claims committee. They had several sessions at which I was present, and Mr. Stone and some of the bridge inspectors and the council committee. The first hearing was had back of the police chief’s room. The other two committee meetings .that I attended were in the committee room of the city hall. Mr. John Bead was present at the first two meetings, and Mr. Myerly and Mr. Bead at the third meeting. I don’t know but there were four of these meetings. I was present at each one of them. The claim was filed with the board -of public works about April 21, 1904, after it had been filed with the city council.
Another witness gave this testimony:
I presented the matter to Mr. Wise, and made an argument concerning the claim, giving him my opinion as to why the claim, or certain parts of it, ought to be allowed. I think Mr. Campbell was there, but my conversation was with Mr. Wise. Mr. Campbell was in the office a part of - the time at least while I was there. I do not remember that I had any direct communication with Mr. Campbell. We had a number of papers with reference to the matter before us at the time. Mr. Wise had' them there. . . . Mr. Wise told me that the matter was pending before the city council, and that he could not act upon the claim until the city council' had passed upon it.
Moreover, it is conceded on all sides that the bridge was completed in the year 1903, so that at that time plaintiff’s claim for extras accrued. It was not filed with the board of public works, if filed at all, until April of the year 1904. Between the time of the accrual of the claim and of each and every item thereof at least two estimates were made and warrants drawn thereon. We are constrained to hold under this record that plaintiff waived its claims for extras by not presenting them within the time provided by the contract, and that there was no waiver of such filing by any conduct or declarations on the part of the board of public works. The only other question to be considered then is, was there a waiver by the city council?
Our conclusion, after carefully considering the whole record, is that the judgment must be, and it is, affirmed.