156 Iowa 157 | Iowa | 1912
The appellant is the owner of property abutting on Thirty-Sixth street. In July, 1909, after due preliminary proceedings, the city council of Des Moines ordered an asphalt pavement to be laid on Thirty-Sixth street beginning at the north side of Grand avenue and extending north to Woodland' avenue; and a contract was duly let to that effect.' This contract was fully performed in all respects save in the alleged failure to pave the intersection of Ingersoll avenue. The appellant appeared before the city council’and made the following objection:' “Objects to the levy of a special assessment for the pavement in front of said property for the reason that the same was not constructed in accordance with the plans and specifications contained in the resolution of necessity or in the contract as let m this: That the contract called for the paving of Thirty-Sixth street from the south side of Woodland avenue to the north side of Grand avenue, and Thirty-Sixth street where it intersects Ingersoll avenue has not been paved. Dated this 22d day of November, 1909. B. W. Mayden.” Appellant’s lot is located near
We can not say, therefore, upon this record, that there was any failure upon the part of the contractor to comply with his contract. Nor can we say that the city council exceeded its power in requesting the omission of the railway crossing from the operation of the contract.
The contract in its modified form having been literally performed, it was incumbent upon the appellant to impeach this modification by proper objection and evidence below before he can be heard here to say that -the original contract was not performed.
The order of the district court must therefore be affirmed.