181 Iowa 296 | Iowa | 1917
The fraud alleged is that there was a departure between the work and the contract and specifications, and that the discrepancies were so great as that there was fraud. It was sought thereby to bring the case,
But in the instant case the trial court found that the evidence failed to show that there was a substantial variation in any of the requirements of the contract and specifications, but that, on the other hand, it Avas shown that a very substantial compliance therewith had been had; that the city’s officials and employes were very jealous of the plaintiff’s interest, and a good and substantial improvement Avas afforded her property and the city’s thoroughfare; that the charge of collusion and fraud was not established, nor was it established that the engineer and inspectors, or either of them, were so incompetent or so negligent that the improvement is an inferior one in any way, or that the contractors benefited thereby, and that the plaintiff suffered correspondingly. After reading the record, we agree with the finding of the trial court. This disposes of plaintiff’s main contentions.
The appellant relies on the Atkinson case, supra, and like cases, while appellee relies largely on the case of In re Appeal of Apple, 161 Iowa 314, 320, and similar cases. We think that the case is more like the Apple case, and that such case is controlling here. No further attention need be paid to the claim of fraud.
The objections filed before the council are, stated as briefly as may be, substantially that the cement concrete foundation was not fiA’e inches in thickness, as required by
It may be well to refer to the evidence in a general way, but in these fact cases it is not our practice to set it out in detail. As to the stone, the trial court found that it was suitable for foundation purposes. Appellant introduced evidence that the stone was dark in color, or appeared yellow, and stated how it could be crushed. The specification does not say that the limestone required must be so hard that it cannot be crushed by the means testified to, and appellant introduced no evidence to prove that hard limestone could not be so crushed, or that it might not be of a dark color, or yellow. A witness for appellant testifies that he thinks the quality of the rock was pretty fair; that it was limestone. Another -witness for appellant says that, upon the instruction of the city engineer, he sent some of the
Another claim of appellant’s is that there ivas so much dirt in the stone that it would not make good concrete. One witness says that there ivas more or less dirt in that special pile, and he thought it was dirt that got there in handling, probably out of the bottom of the car. Other witnesses say that it was not dirt, but seemed like particles of rock, and that it came from the abrasion in the handling of it — dust from the rock as they proceeded to handle it; did not notice the dust when they were not handling it. Another says it
As to the brick, it is true that many were rejected and thrown out, but the weight of the evidence is, taking it all together, that the brick used complied with the test, and that all defective brick was rejected. Some of the brick was rejected before it was unloaded. The manufacturer of the brick was brought. The city sent to Ames and secured a man from the testing laboratory there, who stayed two or three days, and pronounced the brick sufficient under the specifications. On the first two blocks of paving, and before the beginning of the work on the pavement in issue, the city became dissatisfied with the inspectors, and the city thereafter selected its own inspectors.
Another objection is as to the quality of the sand used, and the -thickness of the sand cushion between the concrete and the brick. The specifications required that it should be river sand, free from loam and dirt, and that it should be spread so as to insure a uniform thickness of 1% inches. Another provision is that no sand shall contain, under any condition, more than 10 per cent, of loam or organic matter. Appellant claims that the sand was dirty. Two witnesses so testified, but one of them said that the dirty sand was on another street. None of the witnesses
Finally, it is contended that the concrete base is less than 5 inches in thickness, as required by the contract. We quote from the opinion of the trial court on this point, and we are of opinion that his finding as to the fact is sustained by the evidence. The court said: <
“The testimony upon this claim is very meagre. Quite a number of test holes, small holes, were bored through the concrete base, in a distance of three blocks, two of which Were in front of plaintiff’s 'property. These two holes measured 3% to 4% inches in thickness, but other holes showed 4 to 6 inches, and thereby averaged 5 inches or more. A small hole bored through a pavement from top to earth, and an attempt to measure the bottom few inches, with the bottom uneven, as it is bound to be, is an unsatisfactory measurement. No doubt the foundation ivas not of uniform depth of 5 inches, or the sand cushion of 1% inches. In the performance of work of this character, it is safe to say that compliance Avith every term and condition of the specifications, with mathematical exactness, is never attained, and where the variation is of a trivial and negligible character, and more especially where, as in this case, the city’s engineers and inspectors, overseeing the work, acting in good faith and without collusion or fraud, passes the*302 work without objection, and the engineer finally accepts it, no ground is afforded for disapproving the assessment.”
Without going into further detail as to the testimony, it is our conclusion, after' reading the record, that there was, as found by the trial court, a ‘substantial compliance with the contract, and that there is a good pavement. The holding in the Atkinson case did not change the rule of the prior cases as to substantial compliance with paving contracts, though the writer of that opinion expressed his own vieAv that there should, perhaps, be a more strict compliance Avith the contract than that required in some of the cases. As we have stated, the finding in that case was that the contract was substantially ignored. It was-also recognized in that case that in some instances property owners object to an assessment' against their property, even where there has been full or substantial compliance with the contract, and that trivial objections are made in an attempt to defeat the assessment.
It is our conclusion that, under the whole record, the decree of the trial court was right, and it is therefore— Affirmed.