O'Dea v. City of Winona
| Decision Date | 10 September 1889 |
| Citation | 43 N.W. 97,41 Minn. 424 |
| Parties | John O'Dea v. City of Winona |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Winona county, Start, J., presiding, refusing a new trial after verdict of $ 2,964.23 for plaintiff.
Order affirmed.
W. A Finkelnburg and M. B. Webber, for appellant.
Gould & Snow, for respondent.
The council of the defendant city, contemplating the grading and improvement of some two miles of one of its thoroughfares leading into the country, directed its engineer to prepare and submit a plan or profile of the proposed work, with proper specifications, on which bids might be solicited. This was done May 28, 1888, and the council then advertised for bids. The plaintiff was the lowest bidder, whereupon the matter was referred to a committee, who subsequently advised and reported that the proposed work should be lessened and curtailed. On June 25th, a resolution was adopted by the council, awarding to plaintiff the contract for the improvement of the street in question from one certain named point to another, -- only a part of the distance covered by the plan and profile, the improvement of the balance having been abandoned, it seems. On July 7th, plaintiff and defendant entered into a contract for the work on that part of the street lying between the points named in the resolution, which was to be done in accordance with the plans and specifications above referred to, and to the satisfaction of the council and city engineer, at a certain price per cubic yard for each of two distinct classes of work. The specifications also provided that the work should be done subject to the approval of the city engineer and under his direction. The plaintiff claims to have complied with the terms of his contract, which defendant denies. The motion for a new trial, made after plaintiff recovered a verdict in the court below, having been denied the defendant appeals.
The defendant insists that the trial court erred in permitting the plaintiff to introduce testimony tending to show that at a council meeting on June 27th, when plaintiff's bid was accepted, there were inquiries made by members of the council, and answers by the city engineer in plaintiff's presence, which indicated that there had not only been a departure from the original plan of improvement as to its extent, but also as to its character; and that at some time subsequent to the presentation of the profile to the council and the commencement of the work, the engineer directed and caused a new grade line to be laid down on the profile, -- the principal result claimed from the alleged change being a reduction or lowering of the fill exactly two feet; that is, the top of the road-way would thereby be two feet lower, when completed, than as first designed. It is undisputed that before, or perhaps at the time, plaintiff's bid was accepted, the city council determined to abandon all improvement of a part of the street. Just when or how this conclusion was reached is not apparent from the testimony, the only record thereof or allusion thereto, so far as we have been able to discover being in the resolution accepting the bid for a part of the work, and in the minutes of the meeting before referred to. And from these minutes it might well be inferred that the changes intended by the plan to curtail the expense were much more radical than the single change in distance indicated by the resolution. The contract between the parties made, so far as applicable to the work to be done, the plans and specifications submitted on May 28th a part of it. By the specifications, the work was to be performed under the direction of the city engineer and subject to his approval, while in the contract it was provided that it should be done to the satisfaction of both council and engineer, as well as in accordance with the plans and specifications. The chief controversy arising out of a consideration of this alleged error is as to the grade line to which plaintiff contracted to bring the embankment or fill. The defendant insists that the work was not completed according to contract, because the grade was not brought to correspond with the line indicated upon the profile in red ink, while the plaintiff claims that another grade line was established on the profile, as well as upon the ground, to which he worked; the practical difference being two feet, as before stated.
We are safe in asserting that no matter which of these lines should be regarded as the correct one, the grade itself would have to be fixed and indicated upon the ground by a person qualified, to some extent, in civil engineering. With nothing but the plans, profile, and specifications, the ordinary contractor or non-expert could not safely proceed with the work. Therefore, and in accordance with the universal custom the work was laid out on the ground by means of grade marks placed upon telegraph poles, which were alongside the roadway as then travelled, instead of upon stakes, as is customary. This was done for the information and guidance of the plaintiff by an assistant of the engineer, but under his direction and supervision. And the grade thus established was in conformity with the new line alleged by plaintiff to have been laid down upon the profile. To these marks, and to the grade so fixed under the personal supervision of the city engineer, and with his express approval, the plaintiff, in good faith, brought and completed the fill, as he claims, and as the jurors evidently believed. The testimony in question tended to show that at some time prior to the commencement of the work the council had made or sanctioned the change in the grade; that the members knew of it; and that the engineer's acts in reference thereto were not disapproved. It also had a tendency to show, among other things, that the plaintiff was acting honestly when performing the work in the manner directed by the defendant's authorized and official representative. The contract does not seem to have been unprofitable. The work was to be paid for by the cubic yard, not by the job; and if, under circumstances like those existing here, a contracter, acting in good faith, receives his grade lines and directions from the engineer designated...
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