104 Kan. 257 | Kan. | 1919
The opinion of the court was delivered by
W. H. Frederick entered into a paving contract with the city of Bonner Springs, by the terms of which he was to receive 37 cents .per cubic yard o’f excavation and $1.02 per square yard of paving. Claiming to have performed his contract, he brought an action for the contract price, $1,104.72, of which $87.50 was for g-rading. The city contested the claim on the ground that the work had not been approved by the city engineer, as required by the contract, and was so defectively performed as to be of no value. The plaintiff recovered judgment for $769.96, and the defendant appeals.
1. The fact that the engineer refused to approve the work is not fatal to the plaintiff’s recovery, if such refusal was arbitrary or unreasonable. (6 R. C. L. 960.) Under the instructions, the verdict necessarily implied a finding that this was the case, but the defendant insists that there was no evidence to justify it. The witnesses differed in their judgment as to the quality of the pavement. Although some of them testified that it was'very defective, others said in effect that the contract was substantially complied with. The plaintiff gave a version of the dealings between himself and the city officials which may be thus summarized :
The contract was made on November 23, 1916. It required work to be begun within ten days, to be prosecuted uninterruptedly, to be completed within 90 days, and to be done at the time and in the manner directed by the engineer. The grading was completed and the paving begun in December. About the middle of the forenoon of January 9 the engineer
The engineer in a written report to the mayor and council made statements to this effect: The plaintiff did not quit
The jury made a special finding to the effect that the plaintiff was ready, willing and able to perform his part of the contract, but that the city and the engineer acted unreasonably in demanding that he put in the whole street over again.
We regard this evidence as warranting the finding by the jury of the existence of the following circumstances, which are open to interpretation as tending to show bad faith on the part of the city authorities: The plaintiff was given permission to resume work only on condition that he should sign the agreement called a waiver — the necessity for which is not apparent. He was willing to sign it but was given no fair opportunity to do so. His not signing it was made an excuse for refusing to furnish him an inspector as the work progressed. The engineer upon his inspection (made more than six weeks after the work had been done) believed and told the mayor that the plaintiff was entitled to 70 per cent of the contract price, and that the 30 per cent retained would be sufficient security for the correction of any defects that developed later. Within a few days he made a formal report recommending the payment of $314.60. Later the mayor and council refused to make any
We do not suggest that the evidence compels these findings or that a conclusion of bad faith necessarily follows from them; but when conflicts in the testimony are resolved.in favor of the plaintiff, and the permissible inferences most favorable, to him are drawn from them, we are unable to say that a decision against the good faith of the engineer and the officials must be set aside as without support.
2. The defendant asserts that the amount of the. verdict (a little’ less than 70 per cent of the contract price) shows that the recovery was based upon quantum meruit, instead of upon the express contract, and contends that a municipality cannot be held liable on that basis. The rule that one who obtains an advantage from a part' performance by' a contractor who refuses to perform in full is sometimes liable to the extent of the value of the benefit conferred, may not apply to the same extent to municipalities as to individuals. (See, however, Ritchie v. City of Wichita, 99 Kan. 663, 163 Pac. 176.) But that rule is not here invoked. The charge of the trial court permitted a recovery for less than the full contract price, not upon the theory of a liability arising from the accéptance and-use of the. pavement by the city, but upon the theory that a full performance had been prevented by the defendant. The general rule applicable to that situation is that a contractor who performs a part of his agreement and is unable, to complete it by reason of the conduct of the other party may have a proportionate recovery for what he has done. (13 C. J. 693; 6 R. C. L. 976.) No reason is- apparent why a municipality should not be amenable to that rule. (See The City of Dunkirk v. Wallace, 19 Ind. App. 298; Ayers v. New Castle, 10 Pa. S. C. R. 559; Sheehan v. Pittsburg, 213 Pa. St. 133; Gearty v. Mayor, etc., of New York, 171 N. Y. 61.) Here the contract required the plaintiff to rebuild any work which the engineer should decide to be defective. The jury presumably concluded that about 70 per cent of the paving.was properly laid, and the engineer so regarded it; and that the plaintiff was willing to complete the contract by relaying the defective portions, if given an opportunity to do so, but was prevented by the refusal of
3. Complaint is made of the admission of the written report of the engineer already referred to. The objections to it are that it was not proper rebuttal, was irrelevant, and tended to mislead the jury. Whether it was rebuttal is not now important. We regard it as admissible for such light as it might throw upon the attitude of the engineer. An employee of the plaintiff was allowed to testify that the inspector was satisfied with all the work put in while he was there. This is also objected to.' We do not regard it as seriously prejudicial. Error is alleged in allowing the plaintiff’s attorneys to ask questions suggesting that the attitude of the city toward the plaintiff was due to political controversy. The questions for the most part were ruled out, and it does not seem probable that the verdict was affected by them. Upon this matter the decision of the trial court has practically controlling weight.. The defendant offered to show that the surety on a bond given by the plaintiff to keep the pavement in repair for five years had notified the city not to pay his claim, and complaint is made of the rejection of the offer. We do not regard the evidence as bearing upon any of the vital issues. It is contended that judgment for the defendant was required by a special finding that parts of the pavement were soft, disintegrating, and crumbling. We discover no inconsistency between this finding and the general verdict, which seems to indicate that a part of the pavement was defective. The contention is also made that several of the special findings showed passion and prejudice. The jury found in answer to questions that none of the paving was constructed in freezing weather and that the paving did not freeze before it had set. There was evidence to support this. They also found that the city did not reject the paving and did not serve a notice upon the plaintiff that it had rejected the paving, stating the defects complained of; also that the. engineer accepted the paving unconditionally and made such recommendations to the mayor and council. In view of the entire record, these answers may be interpreted ás meaning that the city did not in good faith decide that all of the paving was defective; that it did not in its notice to the plaintiff indi
4. A final contention is that the plaintiff should not have been allowed to recover his costs, because he did not show compliance with the statute reqúiring unliquidated claims against the city to be presented in writing as a condition to the recovery of costs in an action brought thereon. (Gen. Stat. 1915, § 1750.) The plaintiff asserts that the statute is inapplicable because his claim was liquidated. It is true recovery was had for only a part of the original claim, so that the judgment was for an unliquidated amount. But the plaintiff made his claim in apparent good faith for the payment of the entire sum named in the contract. The city necessarily knew of the contract, of the laying of the pavement, of the amount due, if the work had been properly performed. If recovery had been had for the full amount, the plaintiff would have been entitled to his costs without having formally presented his claim in writing. A written demand (for the entire amount,' whic’ necessarily included the part allowed) was introduced in evidence by the plaintiff, over the objection, among others, that it had not been presented according to the statute. The only evidence on that subject was the testimony of the plaintiff that he had served it on “some official” of the city. This was obviously insufficient, although from the fact that nothing further was brought out or suggested regarding the matter, the probability seems to be that the notice reached the city clerk, mayor or council. At all events, the city knew of the existence of the claim and could have suffered no prejudice from any informality in its presentation.
The judgment is affirmed.