181 Pa. 530 | Pa. | 1897
Lead Opinion
Opinion by
The two main propositions upon which the appellant relies are: (1) that the plaintiffs’ obligation was not fulfilled by the construction of a reservoir in exact compliance with the terms of their contract with the city, but that they were bound to construct a reservoir through which water would not penetrate ; (2) that the director of public works had no power to make any change in the plans and specifications, and that for a construction made in compliance with the changes directed by him, there could be no recovery. To answer these propositions we must consider the terms of the agreement, the cause of the defects alleged, and the character of the changes which were directed.
The plaintiffs entered into a contract with the city to con
The director of the department of public works is given the right to reject materials or work if unsuitable or defective; to supply other materials and employ other contractors or workmen in case the work should be done defectively or not prosecuted diligently; and, as between the contracting parties, he is-made the sole judge of the quality and quantity of the work done and materials furnishe'd, and of the meaning of any part-of the specifications. The contract provides that the materials shall be furnished and the work performed “ in strict and exact accordance with the plan on file in the department of public works and the specification hereto attached.” The provision for changing the contract is as follows: “ The contractor is bound to adopt any change of plans that may be deemed advisable, and an allowance shall be made for or against him, as the case may be, the amount of such allowance to be determined by the chief of the bureau of water and approved by the director of the department of public works and stated in writing previous to the work being done. Such alterations will not annul the contract except as to such altered parts.” In the specifications under the head of “ Approximate Quantities,” and following a. detailed statement of the amount of excavation to be made and of materials of various kinds to be furnished, is this sentence: “ The quantities are approximate only, and the director of the department of public works reserves the right to increase or diminish them as he may deem necessary.” Under one of the thirty subheads in the specifications, the work to be done is named in one sentence as the tearing down and removal of buildings, etc., the making of excavations, the construction of embankments and roadways, the seeding and sodding of the grounds, the building of walls, the lining of the interior slope, the building of walks and stop-houses, the removal of all surplus material, “ and all work necessary to make a complete and perfect reservoir ready for use and to leave the grounds in a suitable condition.” The last clause of this sentence, which closes a description of the numerous things to be done, in the construe
The contract does not admit of such a construction. It was not at any time a fixed and certain contract, as the city through her officials could make any changes which were deemed necessary, and the contractors were bound to build as directed. The words, “all work necessary,” etc., follow the enumeration of the things to be done, and they were doubtless intended to cover points of construction which might have been overlooked, or which might afterwards be found to be necessary, or which could not then be specified, as the working plans had not been completed. The contractors were given no discretion. Every line was drawn, every grade was fixed and every detail was provided for by the city. If the contractors had thought it wise to depart from the plans, and had done so and built a better reservoir, they could have recovered nothing. There would have been a deliberate and wilful departure from the terms of • the contract which would have defeated their entire claim for the price. We cannot conclude that, under an agreement which might be changed from time to time, and in which the only certain thing was that materials should be furnished and work performed “in strict and exact accordance with plans and specifications ” prepared or to be prepared thereafter by the
This is not the case of an undertaking absolutely to construct a particular thing, or to construct a thing according to plans furnished by the builders, or of a failure because of accident to the works or the sinking of the foundation on which the structure was to stand. The failure to obtain the result desired was not owing to the failure to do the work as agreed, but to causes over which the plaintiffs at no time had control.
By ordinance the director of the department of public works was instructed to prepare plans and specifications and to award the contract for the construction of the reservoir. The contract prepared by him and approved by councils bound the contractors to adopt any change of plans that might be deemed advisable, the allowance in cost for or against them to be determined by the director, and full power was given the director to increase or decrease the amount of excavation and of materials of all kinds specified. The contract authorized and entered into reserved to the city the privilege of making changes in its terms as the work progressed, and either by expression or by direct and necessary implication the director of public works was empowered to make such changes, and was constituted the sole arbiter to determine the meaning of the specifications, and whether they had been complied with. As to the wisdom of delegating the power to change municipal contracts much might be said on either side. The delegation of such a power furnishes the opportunity for its abuse, but it seems to be almost essential to the prosecution of works of great magnitude. It is not the experience of life that large confidences are betrayed more frequently than small ones. It is conceded in this case that the changes were honestly made for the benefit of the city. The important changes made were suggested by the experience the department had had with other reservoirs after the contract
The learned judge in his charge clearly stated the law as to substantial performance and instructed the jury that if there had been no wilful departure from the contract or omission in essential points, and the contractors had honestly and faithfully performed their contract in its material and substantial particulars, a forfeiture of the right of remuneration would not arise by reason of merely technical, inadvertent or unimportant omissions or defects, and under the evidence in the case we cannot say that there Avas any error in refusing the defendant’s fifth point. The instruction asked for was that if there had been substantial but not strict performance the defendant was entitled to such a deduction as would compensate for deficiencies. Where there is a recovery for substantial performance notwithstanding defects, there should be a deduction as a compensation to the defendant: Monocacy Bridge Co. v. Am. Iron Bridge. Mfg. Co., 83 Pa. 517. But there must be proof as a foundation for the claim for an allowance. The learned trial judge, in answering the point, said that the law was correctly stated, but that there was no evidence of the cost of repairs, and our attention has been directed to none which would have justified an allowance on any ground.
The judgment is affirmed.
Concurrence Opinion
Concurring- Opinion by
I concur in this judgment, but I feel bound to put my reason for such concurrence on the record. A city, like a natural person, is bound by its improvident contracts, after performance by the other party, unless fraud is shown. This judgment can be sustained only upon that ground. As originally drawn the
The appellees say in their argument: “ The chief of the bureau of water, therefore, naturally endeavored to economize. The result of his economy was the specification of a depth of clay bottom insufficient for the purpose. The water, therefore, penetrating through this insufficient clay bottom sank into the fissures of the rotten or micaceous rock and found its way in natural channels, thus manifesting the so-called leaks.” Reducing the thickness of the bottom reduced its power to hold water and changed a material provision in the contract.
Changes made in the contracts of the city should be made only by the city. The municipality ought never to attempt, nor if the question be properly raised has it the legal right, to abdicate its functions and invest an officer with unlimited power over its contracts, and the pockets of its tax-payers. It does not seem to be doubted that these changes were honestly made, and as the result of mistaken advice from subordinate officers. They were none the less disastrous on that account. The city must pay enormously because of changes that were wholly unnecessary, and that, as the event shows, ought never to have been made. The vice is in the provision to which we have referred, and it ought never to appear again.
