128 Iowa 331 | Iowa | 1905
In the year 1893 the defendant city entered into a contract with the Des Moines Brick Manufacturing Company for the paving of West Grand avenue, in the city of Des Moines, from Twenty-Eighth street west to a point west of what is known as “ Park Lane.” Plaintiffs are the owners of property abutting upon the street above described. No work was performed under the contract until September of the year 1897, when the manufacturing company began the performance of the contract for the improvement, and turned the same over to the city, as a completed job, some time in the spring of the year 1898. The board 'of public works accepted the work as being in accord with the contract, and had given notice of the proposed assessment therefor against abutting property when this action was commenced to enjoin the levy thereof.
The main contention in the case is that the work was not completed in accord with the terms of the contract, and that the acceptance thereof by the city officials is not binding upon the property owners. Incidentally it is contended that the contract under which the work was done was and is
This rule seems to us to he the correct one, especially in view of the statutory provision we have quoted. Whilst this statute provides that the board shall accept the work when completed in accord with the terms of the contract, something must, of course, be left to the judgment of the board authorized to accept; else there is no purpose in having an acceptance at ■ all. But the acceptance must be in good faith, and there must be a substantial compliance with the terms of the contract. Literal compliance is not, of course, required, for something must be left to the judgment of the board. Much depends upon whether or not the improvement, as made, is such as to answer the intended purposes — as to whether or not the work, as done, will affect the usefulness of the improvement — and upon an answer to the question as to whether the departure has been to the prejudice of the property owner. If there have been such substantial departures from the authorized plan of work, such an action as this will lie, especially where, as here, the property owners object to the work as it is being done. It is conceded that there was not full and exact compliance with the terms of the contract in the present case, but there is much dispute as to the extent thereof, and as to the results flowing therefrom. Appellants claim that the contractor departed from the terms of his contract in the following particulars, to-wit: (1) The subgrade was not prepared as required; (2) the sand foundation was not of the depth required; (3) the brick were not of the
The contract provided that the subgrade should be thoroughly and repeatedly rolled with a roller having not less than 250 pounds weight per inch face of roller, and that all depressions which should then appear should be filled with sand or gravel as directed, and at places where excavations had been made for sewer, water, and steam pipes, the earth should be thoroughly and compactly rammed, and the inequalities filled with sand and rolled until the whole surface was uniform.' It also provided that there should be a bottom course of sand four inches deep over the entire roadbed; the foundation to be wetted and rammed to the satisfaction of the city engineer or board of public works. Upon this course there was to be one inch of good, clean river sand, brought to a proper curvature. Upon this sand course a course ■ of bricks was to be laid flatwise; the same to be rolled to settle them into position. Upon this course of bricks was to be spread a layer of dry, clean river sand, sufficient to fill all joints, and to cover the brick course to the depth of one inch; and upon this foundation was to be placed one course of standard-sized paving bricks, set on edge and close together, breaking joints, etc. These bricks were to be 8]4 by 4 by 2*4 inches in size, hard-burned, for both top and bottom courses, according to samples submitted by the contractor. After the top course was laid, it was to be swept clean, and the joints were to be filled either with asphalt or concrete preparations.
Appellants say that none of these requirements were complied with, while appellees admit that the roller was not of the required weight, and that the bricks used were not of full size; that is do say, instead of their being full 4 inches in width, they ran from 3% to 4 inches, depending upon the amount of shrinkage resulting from the burning
• There is a serious dispute as to the condition of the improvement when this case was tried, some four years after the work was done, but that the departures — especially from that part of the' contract relating to the foundation — must have seriously affected the lasting qualities of the pavement, seems clear. All the witnesses agree that at the time of the trial in the district court there were depressions and uneven places in the pavement, but they disagree as to the causes thereof. The evidence shows that various of
Our conclusions find support in the following among other cases: Bond v. Newark, 19 N. J. Eq. 376; Schumm v. Seymour, 24 N. J. Eq. 149; Lake v. Trustees, 4 Denio, 523; Pepper v. Phila., 114 Pa. 96 (6 Atl. Rep. 899).
While, as we have already said, there is a conflict in authority upon the legal effect of an acceptance of the work by city officials, most of the cases relied upon by appellees were decided under statutes quite different from our own. Statutes there construed gave 'unrestricted power to the accepting body. That the abutting property owners had the right of appeal was given great significance in some of these cases — 'particularly in those from Illinois. In Michigan there is a statute which makes an acceptance by the city council final and conclusive. There is now a remedy by appeal in this State, but the statute giving it was not in force when this proceeding was instituted.
We have no occasion to consider the question as to whether recovery may be had as upon quantum meruit, for that is not in the case as presented by the pleadings.
We are of opinion that the trial court was in error in dismissing the petition, and the judgment is therefore reversed.