54 P. 383 | Cal. | 1898
On April 24, 1893, the city of Los Angeles, defendant here, and certain persons, who may be called the “contractors,” executed several instruments in writing, which for present purposes we may regard as a single contract, whereby the contractors agreed to construct (at their own cost for labor and material) sections 3 and 6a of an outfall sewer leading from said city to the Pacific Ocean, for which construction the city agreed to pay them the aggregate sum of $77,450. Said contractors constructed said sections of sewer, and received most of the compensation provided in the contract. They assigned to the plaintiff, a corporation, their claims against the city for some unpaid balances, and for the value of certain alleged extra materials used by them in the work aforesaid. This is an action on the claims so assigned. Plaintiff had judgment below for some hundreds of dollars, but failed as to the bulk of its demand.
1. By the terms of the said contract the conduit in said sections of sewer was to be a pipe constructed of redwood staves bound with steel bands, and it was provided that the city might retain ten per cent of the price specified in said contract for the space of six months after the completion of the work and its acceptance by the city, “during which time the contractors are -obliged to keep the pipe in repair,” and that in case of their default in that particular the city should make the repairs, using so much of the sum retained as might be necessary for that purpose. On February 23, 1894,' the city and said contractors made a further agreement in writing, reciting that said sections 3 and 6a of the sewer were completed and ready for acceptance by the city, and providing that in lieu of retaining ten per cent of the contract price for application to repairs after acceptance, as allowed in the prior contract of April 24, 1893, the city should withhold the sum of $5,000, and that if at any time during such period of six months after acceptance of said sections any repairs
2. Said contract of April 24, 1893, contained the following: “The amount herein agreed to be paid for said work is in full for said sections of sewer complete. No extras are to be allowed, except in case of a change in route or plans, and in that case the payment of the same shall be as stated in the specifications hereto attached.” In the specifications referred to it was provided that: “The city engineer reserves the right to make any desired change in the plans, but the changes so made, Avith the price to be added to or deducted from the contract price, shall be agreed upon between the parties hereto and indorsed upon the contract; and, if they shall be unable to agree upon a price for such alterations, then the city engineer shall fix a fair and reasonable valuation upon such work, and this valuation shall be indorsed upon the contract, and when so indorsed shall he binding upon the parties thereto. If not so indorsed, then the original price shall be neither increased nor diminished.” On the request of the city engineer, who had direction of the work, the contractors used in the construction of said sections of sewer a large number of steel bands for the pipe, in addition to those required by the specifications. It may be admitted, without deciding, that such action of the engineer was a change of plans, so far as his authority in that* behalf extended. It does not appear that the city council had any information of the use or intention to use the additional hands until after said sections of sewer were completed, when the contractors presented an account against the city for the same as extras, at the rate of eighty-five cents each, amounting to $4,012. The city engineer certified that seventy cents each was a just price for them. No indorsement respecting such bands or the price was made on the contract. The court found that they were worth $3,304, the value certified by the engineer. Plaintiff claims that it
I concur: Chipman, C.
For the reasons given in the foregoing opinion the judgment is affirmed.