128 Minn. 452 | Minn. | 1915
■ Defendant being about to construct four re-inforced concrete bridges over canals connecting the lakes in the western part of the city, entered into a contract with plaintiff, a civil engineer, whereby plaintiff agreed to make the detail drawings for the bridges, and, among other things, agreed to “inspect and supervise the materials and work during the course of construction, so as to secure the best results, mechanically and architecturally.” Defendant let the contract for constructing the bridges to the Security Bridge Co., and provided, in the contract that plaintiff should supervise the work,
Defendant had paid plaintiff approximately four-fifths of the amount he was to receive for his services before discovering tbe defects in the work, but refused to pay the remainder thereof, on the ground that he had failed to supervise and inspect the work as required by his contract. He brought this suit to recover the balance unpaid, and alleged that he had fully performed his contract in all respects. Defendant alleged that he had failed to perform his contract, in that he had not secured the proper driving of the piles in question, and had not required the contractor to drive the full number of piles indicated upon the plan made a part of the contract with the bridge company. By agreement the cause was tried before the court without a jury. The court found that plaintiff had performed all the terms and conditions of his contract, and that the defects in question were not due to any “fault, negligence or omission” on his part, and rendered judgment in his favor for the amount claimed. Defendant appealed from the judgment, and presents the single question' as to whether the evidence sustains the above finding.
Plaintiff was an engineer and was employed as such. In performing the work which he undertook, it was his duty to exercise such care, skill and diligence as men engaged in that profession or
The printed record contains over 450 pages and we shall make no attempt to recapitulate the evidence. It shows that plaintiff did not know the manner in which the piles in question were driven, and failed to discover that they had not been driven as required by the specifications. Records of the driving of the piles had been kept by a city employee, until those in question were reached, but were not kept of those in question because other duties called this employee elsewhere. There is testimony to the effect that plaintiff inspected the various parts of the work two or three times a day; that he endeavored to have records kept of the driving of all the-piles; that he was not present when those in question were driven; that he inquired of the men who drove them how they had been driven, and was assured that they had been driven to the extent required; that these men were of good repute and competent to determine such questions, and that their previous reports had been correct and reliable. By the contract between the city and the bridge company, the city agreed to pay the company the actual cost of doing the work, and, in addition thereto, 15 per cent of such cost as profit, with a provision that the entire expense should not exceed a .stipulated sum. The city also furnished the piles- Under such a contract there was little'motive to slight the work. The testimony of experts was to the effect that it was proper and customary for an engineer to rely upon such information as plaintiff relied upon. In view of all the facts and circumstances' shown by the evidence, the question as to whether plaintiff was derelict in failing to discover that the piles had been improperly driven, was a question of fact for the trial court; and that court having found the fact in plaintiff’s favor this court cannot interfere with such finding.
•Plaintiff had prepared the original plans and specifications for the
Without adverting to many other facts bearing upon the questions presented, it is sufficient to say that an examination of the entire record leads to the conclusion that the evidence is sufficient to sustain the finding of the trial court, and that this court would not be justified in vacating such finding.