60 So. 621 | La. | 1913
The city of Shreveport brought this suit to recover a judgment against the defendant for $3,659.76, with interest.
The defendant interposed the plea of nonjoinder, because J. P. Nelson, the principal and contractor, was not made a party. This plea was overruled, and the defendant answered, denying all liability.
There was a judgment rendered for plaintiff for the sum claimed. On appeal plaintiff prayed for an amendment of the judgment in the sum of $250 damages for frivolous appeal.
The facts are that Nelson, principal, and defendant, surety, entered into a contract with the city of Shreveport to pave streets named, and to maintain them for a period of 10 years.
Defendant does not deny that it was surety as alleged. The points of defense are that no demand was made for repairs; that it was called upon to do very limited work, but that the city required much more to be done than it should have required; that the bids of contractors to do repair work were not responsive to the advertisement; that the. repair work was really reconstruction work made of different material than the kind originally used by the first contractor.
The Exception.
On the Merits.
The bids were received and an award made to the successful bidder, who repaired the streets to the satisfaction of the officers of plaintiff. The work was accepted and paid for by plaintiff.
The main objection of the defense is that the material used in repairing was different from that originally used by the contractors; that this difference vitiates the claim; and that the bids were different from the requirements of the advertisement.
Taking up the question of materials used in repairing, the contract between the original contractor and the city was that Uvalde rock asphalt was to be used. The original contractor agreed to pave with this asphalt in accordance with the specifications and profile. Besides, he was to maintain and keep the streets in good repair for a period of 10 years. For all of this, the original contractor, as principal, and the defendant, as surety, signed the bond which is the basis of this suit.
Instead of using rock asphalt, the contractor employed by the city to make the repairs, a Mr. Severance, had to use sheet asphalt. The reason given by him for not using the rock asphalt was that the asphalt plant producing that asphalt was no longer in operation, and rock asphalt could not be had. The sheet asphalt used by this contractor, according to the testimony, was equal to the rock asphalt, and cost cheaper. The advertisement for bids stated that the streets were to be repaired with rock asphalt or asphaltic concrete. Part of the repairs were made with asphaltic concrete; but that also became exhausted, it seems, and no more was to be had. It was then that the contractor began to use the sheet asphalt, as that was all that he could get. This he had to do, although he had to pay a larger amount for it. It is said that there is not much difference between sheet asphalt and asphaltic concrete. In one rock is abundantly used, and in the other it seems that sand is used to a greater extent. The sheet asphalt has, it is said, more bitumen than the other. Other streets, not included in the contract, were paved mostly with sheet asphalt. There was, we are informed, necessity for some uniformity; otherwise the appearance would not have been sightly. It would have been somewhat variegated, it seems, to quote the superintendent of parks and streets.
The city engineer informs us that rock asphalt would have cost much higher than asphaltic concrete or sheet asphalt either; that the sheet asphalt is the natural asphalt.
Following up the testimony from beginning to end, we have not found wherein defendant has any good ground for complaint. •The cost would have been greater had the plaintiff insisted upon the full measure of the work with rock asphalt. The city ought not to be made to lose its claim entirely, on the ground that it had the work done more cheaply than it would otherwise have been had the original contract been followed to the letter.
Asphaltums are of different localities. They are imported mostly from Cuba and Venezuela. Rock asphalt from Texas and Oklahoma. The former are mixed. They differ from each other in chemical composition; in the compounds different qualities
Judgment affirmed.