60 Kan. 833 | Kan. | 1899
The opinion of the court was delivered, by
This was an action of injunction to restrain the city of Kansas City from enforcing the
“ The contractor expressly agrees to give a good and substantial bond to maintain in good order the aforesaid pavement for five years after the date of its acceptance, and binds himself, his heirs and assigns, to make all repairs which may, from any imperfection in said work or material, or from any crumbling or disintegration of the material, become necessary within that time ; and contractor shall, whenever notified by the city engineer that repairs are necessary, at once make such repairs at his own expense, and if they are not made within fifteen days after the date of said notice, the city engineer shall cause such repairs to be made at the expense and cost of the said contractor.
“ It is further agreed that whenever any repairs in the street are made necessary from the construction of sewers, laying of pipes or telegraph wires', or from any other disturbance of the pavement by parties acting under permit issued by the city engineer, the contractor shall, on notification from the city engineer, immediately cause all necessary repairs in conformity with the specifications for this class of work. The cost of such repairs, exclusive of back filling, which should be done by the parties holding the permit given in the same manner as now required by existing ordinances, shall be paid for at the full contract price for a square yard of new pavement, out of the deposit made by the one holding the permit, upon notice of completion from the city engineer.”
The taking by the city council of such a guaranty cannot in law be held to increase the cost of the pavement or to impose upon the property owners payment for future repairs, and there was no evidence that the amount of the contractor’s bid was in fact increased by the imposition of an obligation to make the repairs in question. The use of reasonably good material and the employment of reasonably skilful workmen are implied in the making of every such contract. To express in words what is thus implied, and to take se
The defendants in error have filed a motion to dismiss but it is without merit and is overruled. The judgments of the court of appeals and the court of common pleas are reversed, with directions to the latter court to proceed in accordance with this opinion.