City of Bridgeport v. T. A. Scott Co.
Decision Date | 05 March 1920 |
Citation | 94 Conn. 461,109 A. 162 |
Court | Connecticut Supreme Court |
Parties | CITY OF BRIDGEPORT v. T. A. SCOTT CO., Inc., et al. |
Case Reserved from Superior Court, Fairfield County; Frank D Haines, Judge.
Action by the City of Bridgeport against the T. A. Scott Company Incorporated, and another. On reservation for the advice of the Supreme Court of Errors. Judgment for plaintiff advised.
Action to recover damages for the refusal of the defendant contractor to repair or make good the injury to a seawall which it had contracted to build for the plaintiff caused by severe storm pending the completion of the wall, brought to the superior court in Fairfield county, where a demurrer to the complaint was overruled and one to the second paragraph of the answer sustained (Haines, J.) and later, upon an agreed statement of facts, the cause was reserved for the advice of this court. Judgment for plaintiff advised.
January 26, 1917, the plaintiff and the defendant Scott Company entered into a written contract whereby the latter agreed to construct a sea wall 3,925 feet in length in accordance with plans and specifications annexed to and made a part of the contract. The plans and specifications showed that the work contracted for covered excavation for the construction prescribed, the building of a masonry wall the entire length of such construction, the placing of large quantities of riprap on the seaward side of the wall, filling in behind it, the driving of piles, and the use of both plain and reinforced concrete. The work was to be finished and ready for acceptance on or before September 1, 1917. The consideration named in the contract was one to be determined upon the basis of specified unit prices for the various kinds of work involved, to wit, for each cubic yard of excavation each cubic yard of fill, each cubic yard of cement masonry each cubic yard of reinforced concrete, each cubic yard of riprap, each pile driven, etc. The contract provided that the city engineer should each month, as the construction progressed, make an appropriate estimate of the value of the labor performed upon and materials incorporated into it, and that, whenever the amount of such estimate or estimates for labor and materials furnished since the last previous payment exceeded $500, 85 per cent. thereof should be paid to the contractor on or before the 15th day of the month following. It further provided that the engineer should as soon as practicable after the completion of the work contracted for make a final estimate of its amount and value, and that the city should within 30 days thereafter pay to the contractor the entire sum so found, less the amount of previous payments and the sums entitled to be retained in accordance with the provisions of the contract.
The fifteenth paragraph of the specifications embodied in the contract reads as follows:
The defendant the New Amsterdam Casualty Company is the surety on a bond for $42,600 which the Scott Company, as principal, gave to the plaintiff for the faithful performance of the former's contract.
Upon the execution of the contract the Scott Company entered upon the prosecution of the work, and on the 24th day of October, 1917, had proceeded so far as that the masonry wall was in position and completed save that approximately 390 feet of it had been only partially constructed and some of the coping of the remainder was not in place. The 390 feet had been left incomplete and to be finished in the following spring by agreement with the city, and for prudential reasons which possess no present importance. The unfinished coping would, in the ordinary course of events, have been in position in two more working days. At that time less than one-third of the riprap was in place, and in front of no section of the wall was it completely so. No filling had then been done. On that day a great and unusual storm arose and beat against the unprotected wall with such violence that 1,700 feet of it was greatly damaged.
The plaintiff thereupon demanded that the Scott Company repair the damage thus done and restore the work at its own expense. This is refused and still refuses to do, claiming that it is under no obligation to do so. The cost of such repair and restoration would be $46,000.
Advice is asked in answer to the three following questions:
William H. Comley, Jr., of Bridgeport, for plaintiff.
Walter C. Noyes, of New York City, for defendants.
Counsel for the defendants concede that their clients' defense to this action is to be found, if found it is, in the divisibility of the contract between the Scott Company and the city. If that contract enbraced one entire undertaking, it is apparent that the provision contained in paragraph 15 of the specifications embodied in the...
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