Atletwed v. City of Marysville
| Decision Date | 07 October 1940 |
| Docket Number | No. 40.,40. |
| Citation | 294 N.W. 110,295 Mich. 102 |
| Parties | ATLETWED v. CITY OF MARYSVILLE. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Frank C. Atletwed against the City of Marysville to recover balance due on a contract for construction of water supply intake and for extra materials furnished and extra work performed. From an adverse judgment, plaintiff appeals.
Affirmed.Appeal from Circuit Court, St. Clair County; Fred W. George, judge.
Argued before the Entire Bench.
Walter M. Nelson, of Detroit, for plaintiff and appellant.
Burt D. Cady, of Port Huron (Lloyd V. Marlette and Frank H. Lee, both of Port Huron, of counsel), for defendant and appellee.
The defendant City of Marysville borders on the St. Clair River, and early in 1937 it determined to construct a filtration and pumping station and the necessary intake apparatus for waterworks for said city, as well as for a distribution system in connection therewith. Plans and specifications for the construction thereof were prepared and sealed proposals for construction in accordance with said plans and specifications were advertised for. Separate bids were asked, that is, bids for the filtration and pumping station, for the intake apparatus and for the distribution system in accordance with plans and specifications which had been prepared for each.
Plaintiff, an experienced engineer and contractor, made a proposal for the construction of the water supply intake, the material part thereof being as follows:
‘For approximately 570 lin. ft. of 24 in. cast iron intake, complete in place; Twelve dollars, no cents per lin. ft. $12: Total $6,840
‘For approximately 570 lin. ft. of 24 in. steel intake, complete in place: Ten dollars, no cents per lin. ft. $10 Total $5,700 For intake crib, complete in place with cast iron fittings: Five hundred dollars, no cents Total $500 Lump Sum
‘The undersigned agrees to commence work within three days after the contract has been duly executed and approved and to complete the work on or before November 1, 1937.’
Plaintiff's bid was accepted and on August 14, 1937, a contract was entered into between the parties, the essential part thereof being as follows:
‘The contractor shall furnish all the material, superintendence, labor and equipment and shall defray such other costs as are necessary to complete in a workmanlikemanner to the satisfaction and acceptance of the engineer, the work shown on the plans entitled Water Supply Improvements and in accordance with the information for bidders, general conditions and specifications forming part of this contract.
‘The work covered by this contract shall be commenced Aug. 17, 1937, and be completed on or before the 1st day of November, 1937.
‘And in consideration of the completion of the work described herein and the fulfilment of all stipulations of this agreement, the first party shall pay to the contractor the amount due him based on the following prices:
‘Per lin. ft. price in writing-Ten dollars, no cents per lin. ft.-figures-$10.
‘Total: Six thousand two hundred dollars-$6,200.
‘Contract for Water Supply Intake’.
To quote in full the plans and specifications which were made a part of this contract would not only make this opinion an unjustifiably lengthy one, but would not serve any useful purpose. We will, therefore, be content in calling attention to such portions thereof as will necessarily be the subject of discussion in the determination of the controversy involved in this appeal.
‘ Work Included:
‘The work shall consist of furnishing and placing a crib, complete, with all necessary pipe and fittings as shown on plans and as hereinafter described, at the outer end of a 24 in. intake pipe, and furnishing and placing a 24 in. intake pipe, complete, from the crib to the location on shore shown on plans, and shall include necessary excavation.
‘ Water Depths:
‘Water depths shown on plans are taken from detailed soundings made by the U. S. Engineers Office in 1934.
‘ Steel Pipe and Fittings:
‘Pipe shall be furnished in lengths not exceeding 40 ft. Not more than two sections of pipe shall be welded together to make up one length.
‘Each end of each length of pipe shall be properly prepared for receiving the type of coupling selected.
‘Field joints shall be made with Dresser Style No. 38, or equal standard pattern coupling applied complete in exact accordance with manufacturer's instructions. Couplings shall be completely covered with a heavy coating of bituminous material similar and equal to material used for pipe coating.
‘Bends shall be made from sections welded in substantially the same manner as welds in pipe, and no single angle within bend shall exceed 30 degrees.
‘ Methods of Construction:
‘Methods of construction will generally be left to the discretion of the contractor as long as satisfactory progress is made and good finished work is produced. The methods used shall insure proper alignment of pipe when placed in final position, and shall insure that ends of pipe at joints have not been separated.
‘While pipe is being placed, the methods of construction and materials and equipment used shall provide against deflecting the pipe joints more than the standard amount allowed by the manufacturer of the joint used.
‘ Testing:
‘When the crib is placed, a removable water-tight plug or cap shall be fitted to the outer end of the pipe, and on completion of laying the intake, a water-tight plug or cap shall be fitted to the shore end of the pipe. The contractor shall make a suitable water connection to the plug at the shore end. A test pump shall be attached to this connection, and a pressure of not less than 20 lbs. per sq. in. shall be applied to the entire intake pipe. While this pressure of 20 lbs. is maintained, the loss of water shall not exceed a rate of two gallons per hour per inch of diameter of pipe per 1000 lin. ft. of pipe.
‘Should the loss exceed this amount, the contractor shall immediately make substantial repairs as needed to meet this requirement.
‘The contractor shall supply a suitable pump, pressure gage and meter for making this test, and the test shall be made in the presence of the engineers.
‘After testing is completed, the contractor shall remove the plug (or cap) from the outer end of pipe. If the contractor wishes to remove the test plug (or cap) from the shore end of the pipe, he shall replace it with a temporary bulkhead which will prevent materials from entering the pipe during construction to follow.
‘ Contractor's Understanding:
‘It is understood and agreed that the contractor has, by careful examination, satisfied himself as to the nature and location of the work, the conditions of the ground, the character, quality and quantity of materials to be encountered, the character of equipment and facilities needed preliminary to and during construction operation, the general and local conditions and other matters which may affect the work under this contract.
‘No verbal agreement or statement shall affect or modify any of the terms of this contract.
‘ Intent of Plans and Specifications:
‘All work required by either the plans or specifications shall be furnished and executed by the contractor and should any work or material be required which is not denoted in the specifications or plans but which is necessary for the proper carrying out of the intent thereof, the contractor shall perform such work and furnish such material as fully as if they were completely described.
‘ Report of Error and Discrepancies:
‘ Authority and Duties of Inspector:
‘ Inspection:
‘ Defective Work and Material:
‘ Changes:
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...in a light most favorable to plaintiff, and the uncontradicted testimony of plaintiff must be accepted as true. Atletwed v. City of Marysville, 295 Mich. 102, 294 N.W. 110;Nichols v. Bush, 291 Mich. 473, 289 N.W. 219. Plaintiff was formerly the owner of residential property located in Bango......
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