101 Neb. 189 | Neb. | 1917
The city of Cozad entered into a contract to pay the Katz-Craig Contracting Company of Omaha $34,400 for the installation of a water-works system. The plant was duly installed by the company, and partial payments were made from time to time by the city to apply on the contract price on estimates furnished by Hershey S. Welch a con
The petition, in substance, alleges that Hershey S. Welch, a constructing engineer, was employed by the city to supervise the work; that the constructing engineer made a report and a final estimate showing the amount due from defendant. The answer denies generally the unadmitted allegations of the petition; admits that Hershey S. Welch was the engineer employed by defendant to prepare the plans and specifications, but denies that he was the supervising engineer in charge of the work, or that he had control thereof; admits that Welch was employed by the city to make estimates of amounts due plaintiff as the work progressed; alleges that the ditches for the water mains were not dug the depth required by the contract, and alleges defective covering thereof.
' Plaintiff’s reply denied generally all of the new matter in the answer, and denied specifically any obligation to reimburse defendant for its counterclaims.
The issues are simplified from the fact that defendant in its brief concedes that “the city is not claiming damages for defective construction of the plant. The city concedes that the plant was constructed in all respects as required by the contract, and there is not now any question between the city and the contractor on that point; and, while the plaintiff herein continually mentions damages in his brief, a critical examination of the answer in this cáse will not show any amount claimed as damages, but the only amounts claimed are reductions for work not done and performed by the plaintiff.”
To support its contention the defendant argues. that Hershey S. Welch was not the duly authorized supervising engineer to oversee and to pass upon the work performed by the plaintiff company. Plaintiff offered in evidence, without objection, the contract of employment between the defendant city and Hershey S. Welch that had to do with his services as engineer. It is therein shown that Engineer Welch not only prepared the “plans and specifications and detail drawings” for the plant, but that he was employed by the city to supervise and to oversee the “work and the inspection of the material used therein during the time said water-works system is being constructed by the contractor.” This employment contract may properly be considered in connection with the record, and, all taken together, it is fairly disclosed that Hershey S. Welch was employed by the city and was actively engaged as its supervising engineer. The defendant city paid to the plaintiff many thousands of dollars upon estimates furnished by Engineer Welch. Not a payment was made that did not have his approval. The contract between the plaintiff company and the defendant city provides that payment for material and work “is to be made on estimates furnished by the engineer under the plans and specifications which are made a part of this contract.” In view of the contract and of the record generally, the city can scarcely be heard tn deny the employment and active service of Mr. Welch as
On July 26, 1911, engineer Welch prepared and presented to the mayor and city council his “report” wherein he recommended an acceptance of the water-works system, and his “final estimate” wherein he certified $6,956.11 as the “balance due contractor.” Below his signature appeared some credits claimed by the city, which cannot be considered because he testified that they were placed there at the instance of some person connected with the city government, and that it was done without his approval. It was therefore no part of the estimate of the engineer. It may be noted that the deductions so appearing below his signature aggregate $1,860, and of this sum $1,650 is a claim for damages, contemplated in the contract, for 165 days’ delay at $10 a day beyond the time agreed upon for the completion of the plant. The trial court properly withdrew this claim from the consideration of the jury because no testimony was offered to prove any damages for such delay. It will not be considered by us because defendant’s brief contends only for deductions for work not done and performed. The remaining items aggregated only $210, but they cannot properly be considered as a part of the engineer’s final estimate, for the reasons already given.
Omaha v. Hammond, 94 U. S. 98, holds: “Where a contract, entered into by a city for the construction of certain public works, provides that they shall be completed under the supervision and to the satisfaction of an officer of the city, his action, in finally accepting them, is an announcement of his decision that the terms of the contract have been complied with, and is binding upon the city.”
The record before us utterly fails to sustain the defendant’s argument in support of its claim “for reductions for work not done and performed.” The specifications, which it is agreed are a part of the contract, provide that “the decision of the engineer will be final relative to the materials furnished;” and that the engine and the machinery and the pump fixtures “will be subject to the inspection and approval of the engineer in charge.” It is also specified that “all pipes, specials, valves, and hydrants will be located as directed by the engineer,” and that “the trenches shall be dug and pipes laid according to the grades and lines given by the engineer.” And the contract finally provides that “the final estimate, including the 20 per cent, retained from monthly estimates, will be paid in cash upon the completion of the work according to contract, providing it has been approved and accepted by the city council or their engineer.” National Water-Works Co. v. Kansas City, 62 Fed. 853, 866, 27 L. R. A. 827, 838; Mercer v. Harris, 4 Neb. 77; School District v. Randall, 5 Neb. 408; Wait, Engineering & Architectural Jurisprudence, secs. 429, 430, 446, 485.
The court is unable to discover any reason anywhere in the voluminous record why the defendant city should not, after the lapse of so many years, pay the plaintiff for the water-works system that “was constructed in all respects as required by the contract,” as the defendant’s brief com
In view of the record before us and of-the authorities applicable thereto, the motion of plaintiff for a directed verdict should have been sustained and judgment entered for plaintiff in the sum of $6,956.11.
The judgment of the district court is reversed, with directions to enter judgment for plaintiff in conformity with the views expressed in this opinion.
Reversed.