47 Pa. Super. 148 | Pa. Super. Ct. | 1911
Opinion by
At the first trial of this case the court gave binding direction for the plaintiff, and, upon appeal, the judgment was reversed with a venire facias de novo: Philadelphia v. Bilyeu, 36 Pa. Superior Ct. 562. At the second trial the court instructed the jury that the question for them to determine was whether the pavement benefited the lot, and, if they found that it did not benefit it, it would be their duty to render a verdict for the defendant. The jury found for the defendant, and from the judgment on the verdict the plaintiff took this appeal.
One of the stipulations of the contract under which the paving of the cartway of the street was done was that the contractor should do the work in strict and exact accordance with the proposals and specifications attached to and made part of the contract. Two of these specifications were as follows: 1. “The finished grade for the gutters shall be generally five inches below the top of the curb, except where a change is directed by the district surveyor to insure proper surface drainage.” 2. “The crowning or rise of the finished pavement from the gutters toward the center of the street shall be at the rate of two and one-quarter feet per one hundred feet, except at intersections, or where the surface drainage demands a different crown, as may be directed by the district surveyor. Gutter or crown stakes must be set every fifty feet.” Another stipulation of the contract was that the contractor should execute and finish the paving in accordance with all the ordinances and resolutions of councils relating to paving, and should fully and faithfully comply with all their provisions. One of the city ordinances, adopted in 1885, contains this provision: “Whenever a street is graded or paved it shall be so finished and shaped that the gutters will be five inches below the regulation curb elevation, except at city inlets and in streets where the chief engineer and surveyor shall certify that a different depth of gutter is advisable. The crown of the street or cross slope from.
Certain matérial facts, which on the first trial depended upon oral testimony and were for the determination of the jury, were, upon the second trial, brought upon the record by the express admission of the parties, or were not in dispute under the evidence.
1. According to the lines established and stakes set by the city official, gutters were provided for on both sides of the street, but the contractor, while constructing a six-inch gutter along the defendant’s side of the street, omitted the gutter along the property of the National Biscuit Company on the immediately opposite side of the street, and laid the pavement so that it sloped directly from the level of that property (which was above the grade of the crown of the street), to the center or crown of the street and thence by a sharper grade to the gutter on the south side.
2. It was testified by one of the defendant’s witnesses, and it was undisputed, that from the south curb line in front of the defendant’s premises the pavement was laid with a proper rise to the center of the street, in accordance with the plans and specifications; but it is an obvious and undisputed fact that, owing to the general pitch of the pavement, more of the surface drainage is brought to the gutter on the defendant’s side of the street than would be if the contractor had conformed strictly to the terms of its contract.
3. It should be noticed, however, that there is no evidence that the gutter is not adequate to carry off all the water that is brought to it; that is, there is no evidence that it overflows upon the defendant’s premises. We quote from his testimony upon this subject, omitting, for the present, reference to that part of it which relates to the special conditions that he claims make the construction of the pavement objectionable. “The grade of the street is sufficient to carry the water crosswise which runs into
4. There is no evidence that the admitted departure from the general terms of the specifications and the ordinance had the sanction of the city officials mentioned therein, or of any other city official having authority in the premises. Indeed, all the testimony upon the subject, that was introduced by either party, tends to show the contrary, and, for present purposes, it must be assumed that it was without municipal authority.
It will be well to stop at this point and consider the question of the defendant’s liability under the admitted facts. We quote at length from the opinion of the court in Pepper v. Philadelphia, 114 Pa. 96: “Municipal authorities in the making of street improvements authorized by law to be made at the expense of the owners of lands to be benefited thereby, are to a certain extent the agents of such owners. Contracts lawfully made at the discretion of the authorities, are binding upon the landowners, though injudiciously made; but the owners are entitled to have such contracts performed substantially in all things according to their terms, and the authorities have no power to dispense with such performance to the gain of the contractor and the loss of the property owners. If the authorities are about to accept and pay under a contract, for what in substantial and important respects has not been performed, the property owners may have remedy to enjoin the wrongful payments: Schumm v. Seymour, 24 N. J. Eq. 143. There, it was held that the remedy is in equity. But in this state, where by the laws and ordinances the contractor receives the assessment bills in payment from the city, and it turns out that his work was so defectively done as to be worthless, he has no just right to recover in an action against the property owner, and the latter is not precluded from the defense because he is not a nominal party to the contract. If the work was substantially done as contracted for, answers the intended
But the defense did not rest alone on the admitted facts to. which we have alluded, but rested also on uncontradicted evidence that, if a gutter had been constructed on the opposite side of the street, the refuse and filth created by forty or fifty teams that back up and stand for loading and unloading at the National Biscuit Company’s property several times a day, would be carried into the sewer inlets along the gutter on that side of the street, whereas by reason of the contractor’s failure to observe the requirements of the specifications and the ordinance, this noxious drainage is thrown on the defendant’s side of the street and, at times, particularly in summer, this renders the gutter exceedingly offensive to the occupants of the dwellings on that side of the street. ■ One of the witnesses describes the conditions as follows: “We got all the drain from the north side of the street onto the south side. Q. What kind of drain? A. All the urine from the teams that are brought there and anything that collects in the street where those horses load and unload several times a day from early in the morning until night.” The defendant describes the conditions as follows: “The property on the opposite side of the street is occupied by the National Biscuit Company. They have from thirty to forty teams loading there every morning from six to eight o’clock. In the morning their horses stand there, and all the overflow and urine from these teams flows to the south side of the street, into the gutter on the south side. The pitch lengthwise of the street is sufficient to carry it off but we have it crosswise from the north to the south, flowing into our gutter. There is no gutter on the north side of the street to take off the waste or overflow from their property on their side of the street, as it should be.”
The judgment is affirmed.