12 Wash. 121 | Wash. | 1895
The opinion of the court was delivered by
The appellant entered into a written contract with respondent for the construction of a system of sewerage in the city of North Yakima. Contract and specifications are set forth in the pleadings. The work was to be done to the satisfaction of
During the fore part of the month of June, the city council of the city of North Yakima passed an ordinance provided for in the contract, that they would take charge of the work, and did take charge of the same, and finish the same; whereupon the contractor (the appellant herein) brought an action against the city for damages, alleging the making, execution, and delivery of the contract; that, under the contract, he entered upon the construction of the said sewerage system, and provided necessary, suitable, and sufficient material for the' construction of the same, and was proceeding to complete the same, until he was interfered with and stopped by the respondent; that in undertaking to carry out the contract, he incurred a large expenditure, to wit, the sum of $30,372; that he would have fully completed said system in accordance with said contract, plans, specifications and drawings at a further expenditure of not more $4,000; but that the defendant, by its officers and servants, hindered, delayed and prevented the complete performance of said contract by sundry wrongful acts, setting them forth specifically.
Among the facts which were necessary to the determination of the questions involved in this cause, the most pertinent ones were that the defendant, by its city engineer and others, wrongfully rejected large quantities of pipe furnished by the plaintiff, and refused to permit the plaintiff to lay or use the same, notwithstanding all such pipe fully complied with the contract and specifications; that the defendant, by its officers, on sundry occasions capriciously refused to allow the use by the plaintiff of suitable materials, and, after causing said delay, allowed the same mate
The defendant, by its answer, admits the making of the contract, payment mentioned by the plaintiff in his complaint, and admits extra work done by the plaintiff to the amount of $824, and admits the presentation to and the disallowance of the plaintiff’s claim by the city council, but denies each and every other allegation of the complaint; and for an affirmative defense, and by way of counterclaim, alleges that plaintiff failed and refused to comply with the terms of the contract to complete such work according to the plans and specifications in many particulars, among which were that he did not properly cement the joints of the pipe, that they were laid in a defective manner, so that they leaked, and rendered the sewer systém liable to generate gas, which was liable to cause explosions, etc., by which the defendant claimed to be damaged in the sum of $2,000; alleges that the plaintiff did not furnish the quality of pipe provided for by the specifications; that the same was not the best quality, not properly vitrified, not salt-glazed, and was not of true circular bore and free from warps, but was wholly unfit for the work, and that, by reason of such failure on the
On the trial of the cause, the jury rendered a verdict for the defendant. Judgment was rendered upon the v.erdict, and from said judgment an appeal-is taken to this court.
We have with great care and much labor examined the record in this case, which comprises nearly 1,000 pages of testimony. The case was tried with great ability, both by counsel for the appellant and the respondent, and many days were consumed by the court
In the first place, the payment to the contractor was made conditional upon a certificate by the city engineer. This certificate was never obtained, and, in order to escape the responsibility from this portion of the contract, the burden is upon the appellant to show that it was withheld through the fraud or capriciousness of the engineer. In the case of Craig v. Geddis, 4 Wash. 390 (30 Pac. 396), this court, in passing upon this question, said:
“What is the proper rule as to the necessity and force of the architect’s certificate under contracts of this kind? That the provision of the contract requiring such certificate should be given force is too clear for argument, and is not denied, as we understand it, by the respondents. If, however, the law of such cases justifies the instruction given by the court in this case [the court instructed the jury that if they found that the contract had been substantially complied with by the respondents, and that a certificate of due performance had been demanded, these facts of themselves would authorize them to find that the architect had wrongfully withheld the certificate, and that, under such circumstances, recovery could be had without it], we. are unable to see that any substantial benefit to either party can be derived from requiring such certificate. Without such provision, the respondents, to have recovered upon the contract, would have been required to show a substantial compliance therewith on their part, or some acts on the part of the appellant excusing them from such performance; and as, under the instruction of the court, as above stated, that was all they were required to show, with such provision in the contract, it follows that said instruction deprived appellant of any and all benefit from such provision.”
We do not think that the testimony in this case will warrant the conclusion that the refusal of the engineer to furnish the certificate required was prompted by fraud, malice or capriciousness. The testimony shows that during the entire work there were many disputes between the engineer and the contractor on questions of judgment, and as, under the agreement, the work was to be done according to the judgment of the engineer, there was nothing for the contractor to do but to submit his judgment to that of the engineer. This submission of his judgment was one of the things that he contracted to-do, and it was probably as important a thing in the minds of the city council as any other thing embraced in the contract'. In Hanley v. Walker, 79 Mich. 607 (45 N. W. 57), it was held that where a' contract by plaintiffs for plastering provides that, before payment can be demanded, plaintiffs must obtain the certificate of approval of specified architects, their failure to obtain such certificate is a defense to an action on the contract, in the absence of fraud or collusion on the part of the architects and defendant; and it was also held that defendant’s taking possession of the premises after plaintiffs quit work was not a waiver pf the condition requiring plaintiffs to obtain the architect’s certificate before they were entitled to payment.
The city had a right to demand a strict compliance .with the specifications. The plaintiff agreed to do the work strictly in accordance with- the plans and speci
It is claimed on the part of the appellant that the city is estopped from raising these questions for the reason that their engineer accepted a portion of this contract, and allowed the contractor to proceed in the manner in which it is alleged that he did. It, doubtless, would have been better if the work had been stopped before it was; but the engineer was evidently attempting to get along with the contractor as well as he could, yielding in many instances to prevent
The following excerpt from his testimony will show somewhat the condition of things. In speaking of the rejected pipe, the answer was:
“Answer: Well, there was some of them put down on this side by Captain Thomas’s.
“ Question: How much would you think? A. Oh, I didn’t count them. It was a pretty hard matter to run them, because they were watching us pretty close. McCafferty was sitting right there over the pipe, and I had not much chance.
“ Q. Then, as you got along, you run them occasionally? A. Yes, sir.
“Q,. How many pipe do you think you did that way? A. Oh, some days I would run in one or two. Of*133 course, I was working for. Schmidt’s interests, and I run them whenever I could.
“Q. These were his orders, I believe you said? A. Yes, sir.”
These rejected pipe were marked “Rejected” by the engineer with red chalk; so that there was no question about the workmen knowing what pipe were rejected, and what were not. The witness continuing, says:
“We went on until the pipe got to coming so badtliat they could not use them any more. They were sending such pipe to put in here that it was no use to try to put them in any more.
“Q,. Now, did you have any conversation with Mr. Schmidt about the quality of pipe that was coming? A. 1 asked him once what was the reason that he did not stop it, and try to get some good pipe; that there was no use in trying to get in' some that we had there then.
“ Q. What did he say? A. He told me to keep still, and not say anything about it.”
The same witness testified that the cementing was not done according to specifications, and that Schmidt directed the men, in mixing the sand and cement, to put in all the sand that they could get, and, in answer to the question, “How much sand was put in?” the witness says: “Oh, it run from two to three and four or five shovelfuls to one of cement; just according to how the inspectors were watching.” Another witness testified that he saw Schmidt taking pipe that was rejectéd from one part of the work, rubbing off the rejected mark, and hauling it to another part of the work to be used in the sewer. Another witness (who was an inspector) testified that he would have to have a dozen pair of eyes to keep the workmen from using rejected pipe, or from using too much sand, or from improperly using the cement on the joints. . In fact,
“Well, because sometimes it was impossible to tell whether the cementing of the joints had been done properly. It was impossible to tell whether it was standard weight of pipe, or whether the work was well done or not. I had no way of ascertaining until the work had been completed, and I had tested it. I “was not satisfied with it. I was afraid that it was defective along the line.”
And investigations afterwards showed that the fears of the engineer were justified.
We think,” first, that there was no substantial compliance with the contract upon which the certificate of the engineer could be rightfully demanded; and, second, that the testimony shows that the contractor had been guilty of such fraud- as would prevent him from suing on the contract at all.
The judgment will, therefore, be affirmed.
Hoyt, 0. J., and Scott, Anders and Gordon, JJ., concur.