55 Neb. 718 | Neb. | 1898
The object of this action is to perpetually restrain the city of Omaha from levying a special assessment or special tax upon the premises described in the petition to pay the costs of repaving Leavenworth street in said city, between Sixteenth street and Twenty-ninth avenue. From a decree for the city plaintiffs appeal.
It is disclosed by the record that there was'duly created in said city street improvement or paving district No. 447, including Leavenworth street, and the property abutting thereon on each side to the distance of 182 feet, between Sixteenth street and Twenty-ninth avenue, and that said Leavenworth street in said improvement district was paved with cedar blocks laid on a concrete foundation. Prior to April 12, 1892, this pavement had become in such a dilapidated and worthless condition as to require said portion of Leavenworth street to be repaved, and on said date an ordinance was duly passed declaring the necessity of repaving said portion of the street, and authorizing the property owners in said im-
“15. The contracting party of the second part hereby expressly guaranties the above work for the full period of ten years from approved acceptance of the work, and said party binds himself and his heirs and assigns for the entire expense of all repairs which may from any imperfection in t'h e said work or material become necessary within that time.
“16. And it is hereby agreed that the amount reserved, and accruing interest by the city of Omaha, as guaranty for the maintenance of the work herein specified, shall be used as a special fund for making repairs or reconstruction as deemed necessary by the board of public works, in the manner provided, as follows:
*721 “ ‘If a.t any time Avithin tlie period of guaranty, after the completion and acceptance of the work hei’ein contracted for, the said work shall, in the judgment of the city engineer and board of public works, require to be repaired and resurfaced or reconstructed, the board of public works shall notify the said second party to make the repairs required, and if the said second party shall neglect to proceed with such repairs within three days from the date of the sendee of such notice, then the board of public works shall have the right to cause such repairs or reconstruction to be made in such manner as they and the city engineer shall deem best, and the whole cost thereof, both for labor and material, ishall be paid out of the special fund before mentioned, or if necessary, at the expense of the contractor and sureties.’
“17. * * " Failure or neglect on the part of the inspector to condemn inferior work or material at the time it is being supplied or done, shall not be construed to imply an acceptance of any work. If it becomes evident to the board of public works, at any time prior to the payment of the 15 per cent reserve, that improper material has been furnished or inferior work done upon said improvement, it shall have the right to order the removal of such material or work, and to require that suitable material be supplied and proper work done in lieu thereof by said contractor without expense to the city.
“18. As a basis of interpretation of the acceptable condition of pavements at the expiration of the period of guaranty, it is hereby agreed and understood that if the paving material is found and the wearing surface of the roadway shall possess no less than 75 per cent in the thickness of the specified depth of the original paving-material, in a reasonable smooth condition for travel, it shall be considered as meeting the requirements for final acceptance.”
The contract, under the head of “Guaranties,” contains this stipulation:
“All pavements embraced in these specifications and*722 bidding specifications are based upon a guaranty tliat the pavements will be well and substantially constructed as heretofore provided, and that such pavements will be maintained by the contractor in a condition of continuous good order and repair for the period of ten years from and after the date of their approved acceptance. All securities held as reserves and accruing interest thereon shall be subject to use for such maintenance and repairs by the city of Omaha in the event of the failure of the contractor to keep such pavements in proper-condition, it being expressly understood and agreed that the board of public works and city engineer shall determine when repairs or reconstruction are necessary; and failure by the contractor to comply with a written order, or to enter upon such work within ten days, and complete the same within a reasonable time, shall be held as sufficient authority on the part of the city of Omaha to execute the work, and draw upon the reserve fund to defray the expenses thereof, or at the expense of the contractor and sureties, or both. * * It is distinctly understood and hereby agreed that all guarantied pavements shall receive prompt attention in their maintenance, and when repairs shall fail to be made within twenty days of written notice from the board of public works, a charge of ten cents per square yard of the entire area within the block requiring repairs shall be made against the contractor for every month or fraction thereof that the repairs of said pavement shall be neglected.”
It is argued by counsel for plaintiffs that the proposed levy of the special taxes in question is illegal for the reason it includes the costs and expenses of repairing the pavement for ten years. This argument is predicated upon the provisions of the contract already set out, and a clause contained in section 69, chapter 12a, Compiled Statutes 1891. This section, after authorizing the levy and collection of special taxes and assessments upon the lots or pieces of ground abutting upon or adjacent to any street to defray the costs and expenses of improving or
■Upon this branch of the case counsel for plaintiffs and appellants have cited, to support their position that the contract we are considering is void, the decisions in
The proposition that the contract with Murphy is not rendered void by the provisions therein relating to repairs is sustained by the adjudications elsewhere. In City of Schenectady v. Union College, 66 Hun [N. Y.] 179, the stipulation of the paving, contract there under consideration by the court was essentially the same as the one before us, and the court in the opinion say: “The provision to which objection was made reads as follows: “The party of the second part hereby covenants and agrees that it will do all the work required by such ordinance, and this contract, in such good and substantial manner that no repairs thereto shall be.required for the term of five years after its completion.’ If the contract had stopped here it would hardly be claimed that the contract went further than the ordinance, and was anything more than a guaranty that the work should conform to the requirements of the ordinance, and no one would doubt the power of the common council to prescribe the quality of the work to be done by an ordinance; and yet if the contract had stopped there it can hardly be doubted that the contractor would be liable to the city to keep and make good to the city the conditions of the warranty that no repairs thereto shall be required in five years after its completion. The covenant, therefore, to keep in repair for five years is not an independent obligation, but only a.guaranty of the quality of the work contracted to be done. In this respect we think it essentially different from the contract under consideration in People v.
The precise question was passed upon by the supreme court of New Jersey in an able opinion, rendered in Wilson v. Inhabitants of the City of Trenton, 38 Atl. Rep. 635. The court observed: “The first ground upon which it is urged that this contract should be declared invalid is that, by its terms, Montgomery is made to guaranty the endurance of the pavement for a period not less than five years from the date of its completion and acceptance by the city, and to maintain the pavement in good condition at the finished grade of the street at his own cost and expense during said period; and that upon his failure to do so, the city is authorized to make such repairs as may become necessary, and deduct the cost thereof from such moneys as it may have in hand belonging to the contractor. This provision of the contract, it is claimed, imposes upon the abutting owners, who are liable to assessment for the cost of this work in'proportion to the benefit received by them therefrom, not only the burden of paying for the improvement, but also the cost of keeping it in repair for a period of five years after its completion. If this be the effect of the provision, it is clearly illegal, for, by the eighty-seventh section of the charter of the city of Trenton, 'after any street shall have once been paved, then the city shall take charge of and keep the same in repair at the general expense.’ (P. L. 1874, p. 376.) We are referred to the following cases, which, it is said, support the prosecutor’s contention: People v. Maher, 56 Hun [N. Y.] 81, 9 N. Y. Supp. 94; Verdin v. City of St. Louis, 131 Mo. 26, 33 S. W. Rep. 480, 36 S. W. Rep. 52; Brown v. Jenks, 98 Cal. 10, 32 Pac. Rep. 701; Exelsior Paving Co. v. Leach, 34 Pac. Rep. [Cal.] 116; Fehler v. Gosnell, 35 S. W. Rep. [Ky.] 125; Boyd v. City of Milwaukee, 66 N. W. Rep. [Wis.] 603. The theory upon which these cases are decided is that when, by the terms of the contract, the contractor is required not only to lay the pavement, but also to maintain and
It is also insisted that the pavement in question was so worthless that it would be a fraud upon the property owners to compel them to pay the assessment. The evidence adduced on the trial on this issue, as well as to establish collusion between the contractor and the city authorities, in the matter of the construction and approval of the work, is conflicting and irreconcilable. Suffice it to say that the lower court specially found that the material was furnished and used in the construction of the improvement in question in substantial conformity with the terms of the contract; that the repavement after it had been finished was accepted by the city engineer, the board of public works, and the city authorities; that in doing so they acted in the utmost good faith without either fraud or collusion, and the bill of exceptions contains ample proofs to repel all inference of fraud, and to establish that the pavement was constructed in conformity with the terms of the contract. In declining to disturb a finding of fact made upon conflicting testimony, we merely observe a well settled rule, which has been frequently applied.
The final argument presented is that the work done by Murphy under the contract was not a repavement of Leavenworth street, but was merely a repair of an existing pavement, and, therefore, the city was liable therefor, and it possessed no authority to impose a special assess
AFFIRMED.