City of Hutchinson v. White

80 Kan. 37 | Kan. | 1909

The opinion of the court was delivered by

Graves, J.:

The chief controversy presented here is the contention on the part of the city that the claim of the plaintiff is for extra work, the recovery of which is barred by a clause in the specifications requiring all such work to be authorized by the city in writing, which clause by adoption became a part of the contract. .The contractor insists that the work was not extra work in that sense, but was work made necessary by an error in the specifications, and work which was impossible of performance under the contract.

It is clear that the city engineer miscalculated the space necessary to receive the dirt taken from the canal. This, however, was a mere error in mathematics. The data from which the computation was. made clearly appeared in the plans and specifications, from which the contractor made the calculations upon which his bid necessarily depended. This was a matter as open to the contractor as to the city engineer-The bidders were especially warned to inform themselves fully of the work to be done and thereby avoid mistakes and disputes afterward. The dimensions of the canal and the size of the dumping-ground were each clearly and definitely stated. It was expressly mentioned in the specifications that the amount stipulated in the contract must cover all expenses unless otherwise agreed in writing. These statements and conditions were sufficient to notify the bidders and contractors that they must ascertain in advance what was contemplated by the city in its plans and specifications, as they would be held strictly to a performance of all the work necessary to complete the canal. A careful contractor would have ascertained whether the fifty-foot strip reserved for the dirt excavated was sufficient or not. When the contractor discovered that it was insufficient the question should have been settled by the parties in ■ the manner provided in the contract. The canal, as finally constructed, was just as the contractor and the city cpntemplated when the contract was entered into. Each party knew the dimensions of the canal, and by a proper use of ordinary mathematics could have ascertained how much dirt would have to be excavated and how much space it would occupy when removed. Whatever misleading or erroneous conclusions might be reached by either party in the manipulation of figures concerning these problems, the practical fact stood clearly before them that the contractor had agreed to excavate and remove all the .dirt from the canal and deposit it upon the adjacent land. This was the work he undertook to do. Each of the parties understood this alike. Nothing could mislead them into a misconception or misunderstanding as to this proposition, and no mathematical measurement or estimate could affect the work to be done.

The contractor, by relying upon the accuracy of the city engineer’s estimate of the space necessary to hold the excavated dirt, expended more time and labor than would have been necessary if this mistake had been known earlier. For this additional time and labor he claims coinpensation. It is insisted that where, as in this case, a party wishes to have work done according to - plans and specifications which he prepares and makes a part of the contract he must be held to have warranted such plans and specifications to be correct, and the contractor may rely upon them and will not be liable for any damages which occur on account of errors therein. In support of this proposition the ■case of Bentley and others v. The State, 73 Wis. 416, is cited. That case does not apply to the facts here involved.' There the contractor agreed to furnish the material and construct a building according to certain plans and specifications and under the direction of a superintendent. The kind of material was specified in the contract. The building was so constructed, accepted, and paid for. Soon afterward it fell, not on account of the failure of the contractor in any réspect, but because the material and manner of construction, as prescribed in the plans and specifications, were defective. The contractor, at the request of the state, restored the building according to amended specifications» and upon the refusal of the state to pay him therefor he commenced an action in which he recovered, the court holding that the state, and not the contractor, was responsible for the collapse of the structure.

A man has the right to build a house or construct a ■drain on any plan that suits him, and if he furnishes the plan and prescribes the material, and employs a mechanic to do the work as directed, it is the duty of the man so employed to obey orders, even though he thinks the house will soon fall or that the drain will cause the water to flow the wrong way. In such a case the owner assumes the control and responsibility, and this is the rule that controlled the Wisconsin case. Here the situation is materially different. While the city furnished plans and specifications, they merely contained an outline of the work to be done. They 'contained nothing limiting the contractor in the manner of doing the work which could in any way affect the quality of the canal. The canal was completed in all respects as originally contemplated by the parties. No complaint is made by the city. The contractor, by reason of his reliance upon the mathematical calculations of the city engineer as to the space required for the dirt to be excavated, expended more time and labor than would have been necessary if the engineer’s statement had, been correct. The only question, therefore, which arises is, Shall the city pay for this extra work? Whatever may be said as to what the liability of the city would be under ordinary circumstances, the city expressly stipulated that no allowance would be made for extra work unless the council agreed to do so in writing; that in the absence of such writing the sum stipulated in the contract must be accepted as the limit of the city’s liability. We think these provisions furnish a bar to the contractor’s claim.

This applies to the claim for additional compensation for disposing of dirt outside of the fifty-foot strip only. We are unable to ascertain from the abstracts just what was claimed in the petition. ■ They indicate, however, that other issues were presented by the pleadings, but this question alone seems to have been, presented to the jury and is the only matter presented here. The decision is therefore limited to this single-question.

The judgment of the district court is reversed, with direction to proceed in accordance with the views, herein expressed.