134 Ill. 203 | Ill. | 1890
delivered the opinion of the Court:
The instrument which was executed by MacBitchie & Nicol and the town of Lake View specifically referred to the specifications, and plan thereto attached, as more fully describing that which was to be done by the contractors, and expressly made the same part of the contract, and so the provision in the specifications, “all of the work to he guaranteed to remain in good condition for one year from date of acceptance,” wab as effectually made a part of the contract as it would have been had the very words of such provision been incorporated in the writing which was signed. The guaranty that the work should remain in- good condition for the designated period of time was not, by the terms of the contract, limited to the work to be done and the materials to he furnished by the contractors. It was elsewhere in the agreement expressly stipulated that their work should be executed in the best and most workmanlike manner, and not only that no improper materials should be used, but that all materials furnished, of every kind, should fully respond to the requirements of the specifications, and that wherein the particulars of the materials supplied were not specified, such materials should be suitable for the place where used; and moreover, all such materials and all labor performed Were subject to the inspection of the town engineer, and to his approval or rejection.
MacBitchie & Nicol were contractors of many years’ experience in the character of work involved in the contract, and a few years before had laid a similar pipe for the same municipality, within a few feet of the proposed line of pipe. They had full notice and knowledge what the plan or design of the contemplated structure was, and in the contract which they signed, special reference was made to the specifications and plans appended to such contract. They also knew the work was to be done in accordance with the direction of the town engineer, and expressly agreed to do the work under his immediate direction and superintendence, and to his entire satisfaction, approval and acceptance. By their contract, voluntarily entered into, they agreed to be governed by the directions of the engineer, and his judgment and opinion, in the absence of fraud, bound them as conclusively as it did the town. In other words, both parties, -the contractors as well as the town, assumed the risk, except as otherwise specially provided for in the contract, of an error of judgment, under circumstances of good faith, of the engineer, in giving his directions in respect to the contemplated work. (Canal Trustees v. Lynch, 5 Gilm. 521; Wallace v. Curtiss, 36 Ill. 156; Fowler v. Deakman, 84 id. 130 ; Snell v. Brown, 71 id. 133; Finney v. Condon, 86 id. 78; Stose v. Heissler, 120 id. 433.) Thus, knowing the whole plan and design of the work, and being fully advised that they would be compelled to follow the directions given by the engineer, and conform to his judgment in respect to all matters of detail not particularly determined by the contract and specifications, they warranted that the work would remain in good condition for one year from the time of its acceptance by the town. The clear and natural import of the language used, when applied to the subject matter of the contract,—i. e., the inlet-pipe and crib and branch inlet-pipe and intake, including the ball and socket joints, and every other part of the work described in the plans and specifications,—was, that the structure or work, as an entirety, which was the joint product of the plan or design, the labor bestowed and the materials furnished,—all three combined,—would remain in good condition.
No reason is perceived why contractors may not guarantee against all defects, whatever their origin,—whether they arise, from insufficiency of the materials supplied, from unskillfulness of workmen, or from unfitness of the plan or design,— whether devised by the one or the other of the parties to the contract, or by some other person. In case of A contract with such warranty, it will be presumed that the consideration for the guaranty was included in the price agreed to be paid for the work to he done.' It is not unreasonable to suppose that one desiring a fabric or structure, or an apparatus, or a piece of mechanism to be made, the idea of which is his own or that of his servant or agent, may wish to take the judgment as to its practicability, usefulness and durability, of some person or persons who have a practical knowledge and experience in the construction of things of that sort, and in such case the requirement of a guaranty would be an effectual way of getting the benefit of such judgment. It is the province of the courts to enforce the contract which the town and these contractors have made,—not to make a contract for them. It must be presumed, that had it been their intention to limit the guaranty to the workmanship of the contractors and their servants, and to the materials furnished, such intention would have been expressed in the contract. :
The rulings of the trial court were in substantial conformity with the views herein expressed, and we find no error in the record made in that court. In our opinion it was error in the Appellate Court to reverse the judgment of the trial court.
The judgment of the Appellate Court is reversed, and the judgment of the Superior Court affirmed.
Judgment reversed.
