Barber Asphalt Paving Co. v. City of Wabash
| Decision Date | 26 January 1909 |
| Docket Number | No. 6,257.,6,257. |
| Citation | 86 N.E. 1034,43 Ind.App. 167 |
| Parties | BARBER ASPHALT PAVING CO. v. CITY OF WABASH. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge.
Action by the Barber Asphalt Paving Company against the City of Wabash to recover on a street paving contract. From a judgment entered on sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.
Wilson & Townley, for appellant. Shiveley & Switzer, for appellee.
By this action appellant sought to collect from appellee $750 on account of a written contract entered into between appellant and appellee for the improvement of a certain street in the city of Wabash pursuant to the provisions of an act of the General Assembly of this state, approved March 11, 1901 (Acts 1901, p. 534, c. 231). The complaint was in one paragraph, to which a demurrer for want of facts was sustained. Plaintiff refused to plead further, and judgment was rendered against it and in favor of appellee for costs.
From the complaint it appears that the contract in question called for the improvement of a certain portion of Wabash street in the city of Wabash according to certain plans and specifications relative thereto and made a part of said contract. Neither the plans, specifications, demand for bids, nor did appellant's bid or the acceptance of its bid, contain any provision fixing a time certain for the completion of the work, but the written contract subsequently entered into did provide that “said improvement shall be finally and in all respects completed on or before the first day of October, 1901, and the party of the first part agrees to pay and forfeit to the city of Wabash as liquidated damages, the sum of twenty-five dollars ($25) for each and every day after said first day of October, 1901, until said work is finally completed and ready for acceptance by the party of the second part.” Said specifications, among other provisions contained the following: “The work shall be commenced and carried on to completion at such points as the city engineer may designate; no square shall be blocked except where the contractor is actually working, and each square, as soon as the pavement is laid, at the discretion of the engineer, shall be thrown open to public use; but such openings or using of the street shall not be deemed or held to be an acceptance of any part of the work; the engineer from time to time may suspend the work at certain places, or altogether, if, in his opinion, public need requires it; but said engineer shall not have the right to stop the work altogether for more than one week at a time excepting that, whenever in the opinion of said engineer, the weather is not suitable for doing work, he may cause the work to be suspended.” It is also shown that the proposed improvement was more than 3,000 feet in length and intersected by a number of cross streets; that appellant, pursuant to said contract, entered upon the work of making said improvement, but failed to complete the same until October 31, 1901; that pursuant to law the cost ($26,807.38) of making said improvement was assessed in part against said city, and the balance against the property abutting the improved portion of said street; that the amount so assessed against the abutting property has been paid, as well as the amount assessed against said city, except said sum of $750, which said city refused to pay solely because of appellant's delay in the completion of said work. The complaint also states “that the defendant was not damaged or injured in any sum whatever by plaintiff's delay in the completion of said improvement.”
The parties to this appeal by their briefs, under the heading “propositions or points” (Rules of the Supreme and Appellate Courts, § 22, cl. 5 [55 N. E. vi]), present but one question, and that question rests on the effect to be given that stipulation in the contract relating to the time when the work shall be completed and ready for acceptance. If this stipulation is to be construed as fixing a penalty, the judgment must be reversed. If it is a case of liquidated damages the judgment must be affirmed. Appellant, in connection with the above question, has submitted for our consideration certain other questions, which we will first notice. Appellant insists that the above stipulation was for the benefit of the abutting property owners, and, as the city did not consider them in making the assessments against the abutting property, it thereby waived its right to insist upon the payment of any damages for delay, citing Gulick v. Connely, 42 Ind. 134, 136; that such stipulation was invalid for the reason that the procedure in cases of this kind is governed by statute, and as the statute is silent on that subject, the common council had no authority to include it in the contract, and because there was no new consideration moving to the contractor to assume any obligation other than those named in the specification, citing State v. Common Council, 138 Ind. 455, 463, 37 N. E. 1041. In the case last cited the opinion discloses that the common council had instructed the mayor, on behalf of the city, to enter into a certain contract, and the question in that case was whether the mayor had exceeded his authority; the contract as signed not having been approved by the council. In the case before us there is no claim that the contract was not duly entered into on the part of the city, or that it was not the contract of appellant. Appellant proceeded under the contract. All the rights it claimed were by virtue of the contract, and any burden it may have legally incurred thereby was enforceable unless released in some manner authorized by law.
While the preliminary proceedings had by the city did not call for a time limit for the completion of the work, yet upon the theory that cities have no right to obstruct streets for an unreasonable length of time in making public improvements (Cummins v. City of Seymour, 79 Ind. 491, 495, 41 Am. Rep. 618), and in the making of such improvements they act ministerially, and their negligence may be the basis of an action (Murphy v. City of Indianapolis, 158 Ind. 238, 63 N. E. 469), and being required by law to exercise reasonable care to keep the streets in a safe condition for travel (City of Muncie v. Hey, 164 Ind. 570, 74 N. E. 250;City of Vincennes v. Spees, 35 Ind. App. 389, 74 N. E. 277), and having the power to contract for the making of the improvements, carries with it the implied power necessary to make this contract effective (Boyce v. Tuhey, 163 Ind. 202, 70 N. E. 531). The council having in mind these, as well as other well-settled principles of law relative to its duty regarding streets and its power over the same, no doubt desired a speedy consummation of the proposed improvement, and to that end had the stipulation in question inserted in the contract. It has been held that after bids have been received for a street improvement, council may include extra work not specified in the improvement ordinance or in the advertisement for bids, and assess the cost of such work against the abutting property. Boyd v. Murphy, 127 Ind. 174, 25 N. E. 702. The holding in that case goes farther than we are required to go in order to uphold the action of the council in requiring a time limit. Courts take judicial knowledge of the seasons of the year (Wasson v. First National Bank, 107 Ind. 206, 219, 8 N. E. 97), and it is a matter of common knowledge that in this climate street improvements of the character contemplated by the...
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