Bates County, Mo., v. Wills

• Decision Date: 21 September 1911
• Docket Number: 3,470.
• Citation: 190 F. 522
• Parties: BATES COUNTY, MO., et al. v. WILLS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

190 F. 522

BATES COUNTY, MO., et al. v. WILLS et al.

No. 3,470.

United States Court of Appeals, Eighth Circuit.

September 21, 1911

Frank Hagerman (Thomas J. Smith, on the brief), for plaintiff in error.

F. N Judson and Frank M. Lowe (William Mumford and Judson & Green on the brief), for defendants in error.

Before HOOK, Circuit Judge, and RINER and WM. H. MUNGER, District judges.

WM. H MUNGER, District Judge.

By statute of the state of Missouri the county court of any county in the state was given the power, at any regular session thereof, when the same should be conducive to the public health, convenience, or welfare, or where the same would be of public utility or benefit, to cause to be constructed ditches and drains within said county, when the same were necessary to drain any lot, lands, public or corporate roads or railroads. This power was to be exercised upon a petition filed with the county court by landowners whose lands were liable to be affected by assessment for the construction of the same. The county court was then to appoint commissioners, and an engineer to make a preliminary survey and report as to the advisability of the proposed ditch, and for the organization of the lands to be benefited into a drainage district, to be known by a given number. After such report, if the county court should find that the proposed ditch or other improvement was necessary for sanitary or agricultural purposes, or would be a public utility or conducive to the public health, convenience or welfare, it was required to make an entry of record of such finding and appoint some competent engineer and three viewers to establish the precise location of such ditch, make a survey and level, and set a stake at every one hundred feet numbering downstream, determine the dimensions and form of the ditch or other improvement, estimate the number of cubic yards of earth or other substance to be removed, and the cost per cubic yard for each section of one hundred feet and for the whole work, and to make a report, profile, and plat of the same, such profile to show the surface, the grade line and grade. They were also to return a schedule of all lots and lands and of public and corporate roads or railroads that would be benefited, damaged, or condemned by or for the improvement, the damage or benefit to each tract of 40 acres or less, etc. Upon the filing of the report of the viewers the county court was required to set a date for a hearing of the same, and notice was to be given to the parties affected of such hearing. The county court was required to fix the time and place of letting contracts for the construction of the ditch according to the report of the engineer and viewers, and cause notice thereof, containing a description of the work to be let, to be given by the clerk of the court by publication, and the county court should cause the engineer to attend the sale and offer the work, receive the bids, and make contracts on behalf of the county with the lowest responsible bidder. and take bonds for the performance of the work, no bid to be entertained which exceeded the estimated cost of location and construction of the work. The engineer was to return all contracts and bonds to the office of the county clerk, and the county court was then required to approve or reject such contracts and bonds.

Pursuant to these statutory provisions, drainage district No. 1 of Bates county, Mo., was organized, and on May 2, 1906, a contract was let by one Bell, the engineer, to Timothy Foohey & Sons for the construction of a ditch divided into three sections. The contract and the bond given by the contractors was subsequently approved by the county court.

The provisions of the contract material for proper consideration of this case were as follows:

'That in consideration of the covenants and agreements of the party of the first part hereafter mentioned to be kept and performed, the party of the second part covenants, promises, and agrees to and with said party of the first part to execute with a steam dredge, according to plans and profiles and specifications prepared by the engineer of said district and now on file in the office of the county clerk of Bates county, Missouri, the following ditch, to wit: * * * The said ditches are to be executed with a steam dredge, the sides and slopes of said ditches not being required to be dressed to a smooth surface by hand work. The berme required in the specifications will be kept as nearly passable as the convenience and conditions of the ground will permit, but it is not expected to be kept clean from slush and the roll of the dredge. * * * All of said work to be completed according to plans and specifications, and under the direction and with the approval of the engineer in charge. * * *

'In consideration of the foregoing covenants and agreements of the party of the second part, the parties of the first part on behalf of said district hereby promise, covenant, and agree to pay to the party of the second part for the construction of said works the prices stated as follows, to wit:

'The sum of eight (8c) cents per cubic yard for all excavation in sections No. one and two (1 & 2) as shown on the plans and specifications aforesaid, and for the excavation in section three (3) shown on said plans and specifications ten (10) cents per cubic yard from Station No. 1012 to Station No. 1130, and also from Station No. 1174 to Station No. 1234 plus sixty feet, and the sum of twenty (20c) cents per cubic yard for excavating from Station No. 1130 to Station No. 1174, and in addition thereto for the removing of coal, stone, and shale the further sum of ten thousand eight hundred thirty-three dollars and thirty cents ($10,833.30) and for construction of laterals No. one and three (1 & 3) the sum of fifteen cents (15c) per cubic yard, and for lateral No. four (4) twelve (12) cents per cubic yard.

'Payments therefor shall be made on estimates made by said engineer who shall examine and measure the work done, and make such estimates monthly, and shall ascertain whether said work has been completed according to contract and his directions given for said construction, and, if the work shall be found to be deficient in any respect, said engineer shall at once give to the contractor notice, specifying the respect in which the ditch is deficient and direct such contractor, the party of the second part, to immediately

remedy such defect, and the engineer's estimate of the work done shall be withheld and no payment made thereon until such deficiency is remedied.

'If the work is found to be completed, or when any deficiency therein shall have been remedied as required by such engineer, he shall then give his estimate, and the county court of Bates county, Missouri, shall then accept said part of the ditch, and the contractor shall not be responsible for any defects that may occur after the time the same shall have been accepted, and, when any part of said ditch is accepted, the contractor shall then be paid in accordance with the terms of this contract for the work done up to that time, less ten per cent. (10%) of the contract price thereof which said ten per cent. shall be reserved until the final completion of all the work in each working section as given in the plans and specifications, aforesaid, at which time the whole amount due for work done upon each such section shall be immediately paid.'

On the day of the execution of the contract Timothy Foohey & Sons assigned and transferred to A. V. Wills & Sons the portion of the contract relating to section No. 3, said A. V. Wills & Sons obligating themselves to perform the contract relative to section 3, and the work which was done upon said section 3 was performed by said A. V. Wills & Sons.

Separate estimates were made by the engineer of work done by said A. V. Wills & Sons as the same progressed to August, 1908, and 90 per cent. of the total amount was paid by the county court, 10 per cent. being reserved.

During the progress of the work and on the 6th day of August, 1908, the records of the county court show that said A. V. Wills & Sons stated to the county court that there was found in the land required to be excavated under the plans and specifications provided for the work a large amount of stone, which was not included nor covered by the terms of the contract, and that they could not, under their contract, remove the stone from said ditch as referred to under the contract so entered into. The record then recites as follows:

'And all the parties being desirous that the work not be delayed, and the said Timothy Foohey & Sons appearing herein and consenting hereto, it is by the court ordered that the said A. V. Wills & Sons may proceed with the execution of their work as heretofore done by them, and it is understood that in so doing they shall not be held nor taken to waive any right that they may now have to insist upon, or maintain that under the terms of the contract heretofore entered into they are not required to remove from the ditch stone that has been uncovered, nor such as may hereafter be uncovered, but their right, if any they have, shall be preserved to them, as it now exists, to claim or maintain that they are not obligated by the terms of the contract to remove from said ditch the stone complained of.

'It is understood, however, by all the parties the county court of Bates county, Mo., acting in this behalf for said drainage district, the said A. V. Wills & Sons and the said Timothy Foohey & Sons that the said county court does not concede the correctness of the claim thus made by the said A. V. Wills & Sons in any respect, but expressly reserve whatever right it may have to insist upon the removal down to the grade line of all

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