143 So. 7 | La. | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *71 This is a proceeding by mandamus to compel the town of Plaquemine and its governing authorities to levy an assessment according to front footage upon the property holders facing on certain streets whereon relator laid sidewalks under contract with the town under the provision of Act No. 147 of 1902.
There was judgment below for the relator, and the defendants appeal. The relator has answered the appeal, asking certain amendments.
The item of $598.32 for special work was abandoned by the relator, and the trial judge rejected the item of $5,054.33 for "extra work," on the ground that same was not covered by the bids. He fixed relator's claim at $25,680.65.
We think the trial judge erred in rejecting the item of extra work. It consisted of reinforcing steel, costing $4,521.98, and sundry small items of drain tiles and special curbing amounting to $532.35.
It is true these items were not included in the "unit bidding" for the contract. But the specifications, advertisement, instructions to bidders, and contract form, all prepared by the engineer and attorney specially employed by the town and approved by its governing authority, all contained the clause that: *73
"When sidewalks are to be laid on new fills, or where the subsurface conditions are such that in the opinion of the engineer the use of steel reinforcement is necessary in the concrete foundations, the contractor will be required to place such reinforcement where directed by the engineer, and be compensated as provided for in Extra Work, Section 27 of contract. * * *
"(27) Extra Work. * * * The price for such work shall be determined by the engineer, who may either fix a unit or lump sum price, or may if he so elect, provide that the price shall be determined by the actual cost, to which shall be added 10 per cent. * * *"
It is not possible to foresee and provide in detail in a large contract, every item and the amount thereof that may be needed; hence a provision as to extra work is a necessary clause in every building or construction contract. And it suffices if the bids follow the call since every one has an equal chance in the bidding, which is all that the law does or reasonably can contemplate. "It is not necessary that every detail of the improvement or all the particulars of the work be described." 44 C.J. 274.
It is now contended that the acceptance of the work by the town authorities was obtained by fraud, said fraud consisting of the representation of the contractor, corroborated by the engineer, that the work had been done according to specifications, which is now alleged to be untrue; and that the contractor would readily remedy any defects which would be pointed out to him, but did not do so.
The trial judge failed to see in this any evidence of fraud. Nor do we. The representation was made in good faith, even if erroneous (which was not shown to the satisfaction of either the trial judge or ourselves). And the town authorities, though invited to inspect the work before accepting it, failed to avail themselves of the opportunity to do so either after the work was completed or *75 whilst it was going on. All except one, a Mr. Emde, who spent a couple of hours looking over the work, found some defects, real or supposed, advised his brother selectmen (councilmen) of what he found, and then voted with them (all except one, a Mr. Bernard) to accept the work.
As, in the absence of fraud, the acceptance of the paving by the municipal authorities would be conclusive on the property holders, such acceptance must be at least prima facie evidence against the municipality that the work was completed strictly according to contract. Cf. De Ridder v. Lewis,
And that presumption has not been overcome by the defendants either to our satisfaction or to that of the trial judge.
In this case the complaint is made (but not sufficiently proved) that the concrete did not contain the full specified amount of cement and was not of the full required thickness. Such deficiencies, if they exist, cannot be remedied now; but do not make the pavement valueless. And there is no evidence on which a reduction in price could be even approximated.
Manifestly it is only through mandamus that relator can compel the municipality to levy such assessment. The writ was invented for just such purposes. Cf. Code Prac. arts. 830, 831. And, if the municipality contests *77 the claim of the relator, the only thing possible and practical is to establish it in the same proceedings. The law never contemplates a multiplicity of suits when one suit will suffice.