136 Minn. 288 | Minn. | 1917
In 1905 and 1906 plaintiff laid a tar macadam pavement on a street of Duluth under a written contract. By the terms of the contract the work was to be done according to specifications under the supervision of the city engineer and subject to his approval as to workmanship and material. Under heading “Guaranty” appeared several distinct paragraphs as follows:
“The contractor hereby agrees to guarantee the pavement constructed under these specifications for a term of five years from the date of the completion of the work under the contract and its acceptance by the'city, and shall keep the same in good and sufficient repair during said period of five [years], repairing the pavement whenever settlements, holes, or any cracks of three-eighths (3-8) of an inch or over in width, or which shows disintegration from any cause whatever or any spots or places which show disintegration or raveling, occur; and at the end of said period of five years, to turn said pavement over to said city in good order and condition. If, during that period, it is found that the pavement is defective, from improper material or mixing of the same, or any other preventable cause, or that the work has been done in an unskilful manner, the contractor shall, at his own cost and expense, upon an order of the board of public works, entirely remove any defective portion of the pavement-; and replace the same to the satisfaction of the said board of public works. Said board of public works shall be the sole and final judge, whether or not said pavement is in good and sufficient order and condition during the continuance of and at the end of said term.
“And it is further agreed, that whenever any repairs of the streets are made necessary from the construction or repairs of sewers, or sewer con*290 nections, the laying of water or gas pipes, or water or gas connections or repairs thereof, or telegraph wires under the street or conduits of any kind, or repairs thereof, and for repairs of any of the same, or from any other disturbances of the pavement by parties acting under permits issued by the city or its authorized agents, or from other causes not due to defective material or workmanship, the contractor, on notification from the board of public works, shall make all the necessary repairs in conformity with the specifications for this work. * * *
“The cost of such work or repairs as referred to in the preceding paragraph, which shall be done on said street after the completion of said contract work, and its acceptance by said city, shall be paid by the party or parties in whose interest and for whose benefit such work or repairs shall be done, at the price of two dollars and fifty cents ($2.50) per square yard of said pavement.’’
Within a few days after the pavement was completed, it was damaged by a circus parade, and, at the instance of the city engineer and city attorney, plaintiff repaired the damage. In 1907, under a distinct order of the board of public works made that year, he made 1,245 yards of repairs. In 1908, under another distinct order of the board of public works made in July of that year, he made 1,357 yards of repairs. Part of the work done was in repairing holes in the street due to wear and part in restoring the pavement after work done under permits from the city. On September 8, 1914, he brought this action to recover payment for the repairs made in 1908 at $2.50 a yard, and later amended his complaint so as to demand payment for the work done in the years 1906 and 1907. The trial court found that the repairs done became necessary from causes not due to defective material or workmanship in constructing the pavement and gave judgment for the full amount claimed. Defendant appeals.
The city contends: That the evidence does not sustain this finding; that in any event the guaranty clause in the contract is an absolute guaranty against all defects of the character named for five years, even though not caused by defective material or workmanship, and that the claim is barred by the statute of limitations.
As above indicated, the work done in 1908 was one job, done pursuant to the same order and in a continuous manner. 'No money was due for that job until it was completed. There is no finding as to when that work was .completed, There is some evidence that it was completed within six years of the commencement of this action. Since the statute of limitations is an affirmative defense, we cannot assume that it has run against the claim for work done during 1908.
The judgment is reversed and judgment will be entered for the amount found due for work and repairs in 1908.
On April 7, 1917, the following opinion was filed:
Appeal from the clerk’s taxation of costs.
'The contract mentioned in the opinion contained 261 folios, 87 printed pages. Not over 36 folios or 12 pages had any bearing on the questions raised by the appeal. No useful purpose was subserved by transcribing or printing more than that. From the costs allowed the amount taxed for transcribing 225 folios and printing 75 pages of the contract should be deducted. So ordered.