City of Chicago v. McKechney

• Decision Date: 16 December 1903
• Citation: 68 N.E. 954,205 Ill. 372
• Parties: CITY OF CHICAGO v. McKECHNEY et al.
• Court: Illinois Supreme Court

205 Ill. 372

68 N.E. 954

CITY OF CHICAGO

v.McKECHNEY et al.

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Appellate Court, First District.

Action by John McKechney and another, as the surviving partners of the firm of Weir, McKechney & Co., against the city of Chicago. From a judgment of the Appellate Court (91 Ill. App. 442), affirming a judgment in favor of plaintiffs, defendant appeals. Reversed.

[205 Ill. 404]Charles M. Walker, Corp. Counsel, Thomas J. Sutherland, and James E. Munroe, for appellant.

Peck, Miller & Starr and L. D. Condee, for appellees.

This is an action of assumpsit, brought on December 8, 1897, in the circuit court of Cook county, by Frederick C. Weir, since deceased, and the appellees, John McKechney and John McKechney, Jr., then constituting the firm of Weir, McKechney & Co., against the appellant, the city of Chicago. The trial, which began before the court and a jury on June 23, 1899, resulted in a verdict in favor of the plaintiffs below and against the city, on July 15, 1899, for $619,638.81. Afterwards, during the argument for a new trial, a remittitur of $64,078.59 was entered, and on August 29, 1899, judgment was rendered against the city for $555,560.22 and costs in favor of the present appellees. An appeal was taken from this judgment to the Appellate Court, where the judgment was affirmed, and the present appeal is prosecuted from such judgment of affirmance. On March 10, 1899, the death of Frederick C. Weir, one of the plaintiffs, was suggested upon the record, and the cause was ordered to proceed at the suit of the surviving plaintiffs, John McKechney and John McKechney, Jr., the present appellees.

The suit is brought to recover for work done in the construction of section 3 of what is called the ‘Northwest Land Tunnel,’ built for the purpose of conducting water to the northwest quarter of the city of Chicago, and running from a point on North Green street, in that city, near Grand avenue, in a northwesterly direction, to a point in section 35, town 40, range 13 E. of the third P. M. On August 20, 1895, the department of public works advertised for bids for the construction of said tunnel, and in the advertisement announced that sealed proposals would be received by the city until 11 a. m., August 31, 1895, for furnishing all material and constructing a water tunnel under the city of Chicago, with necessary shafts. The advertisement described section 3 as ‘tunnel eight feet internal diameter, from junction of ten and eight foot tunnels at or near Green street, in a northwesterly direction; * * * all with necessary shafts, according to plans and specifications on file in the office of the department of public works of said city.’ Said Weir and appellees put in the lowest bid for the construction of said tunnel, and therein stated as follows:

‘The undersigned hereby propose to do all the work and furnish all the material necessary in the construction of the water tunnels * * * from North Green street northwesterly, * * * according to the specifications hereto attached, at the following rate of prices:

‘Sec. 3. Shafts, ten feet internal diameter, per lineal foot, $69.50. Tunnel in earth, eight feet internal diameter, per lineal foot, $16.65. Tunnel in rock, eight feet internal diameter, per lineal foot, $15.90. Rock excavation over and above cost of lineal foot of tunnel or shaft, per cubic yard, $2.00. Cast iron in covers, etc., per pound, .05.

‘The undersigned also agree to a deduction of $200.00 per day for each and every day after the expiration of the time named in these specifications that the work is not completed. The undersigned hereby certify that they have read the foregoing specifications, and that the proposal of the work is based on the conditions and requirements embodied therein, and, should the contract be awarded to them, they agree to execute the work in strict accordance herewith. The above proposal is based upon the conditions and stipulations named in the advertisement inviting proposals for such work, material, or supplies, and in accordance with the specifications and plans prepared for the same on file in the office of the department of public works; and, should the commissioner of public works award the contract to the undersigned, then the undersigned agree to do such work or furnish such material or supplies upon the terms and conditions prescribed in the said advertisement, specifications, and plans referred to, and hereby agree to enter into such contract with said city within such time and in such manner as shall be required by such commissioner for the doing of such work or the furnishing of such material or supplies,’ etc.

The above proposal and bid, and agreement embodied therein, were signed by Weir and the appellees. Thereupon, on October 19, 1895, a contract was entered into between Weir and appellees, composing the firm of Weir, McKechney & Co., of Chicago, parties of the first part, and the city of Chicago, of the second part. Said contract of October 19, 1895, with the specifications thereto attached, is as follows:

‘This agreement, made and concluded this 19th day of October, A. D. 1895, between Fred C. Weir, John McKechney, and John McKechney, Jr., composing the firm of Weir, McKechney & Co., of the city of Chicago, county of Cook, and state of Illinois, parties of the first part, and the city of Chicago, of the second part, witnesseth: That the said parties of the first part, for and in consideration of the payments to be to them made by the said city of Chicago, as hereinafter set forth, hereby covenant and agree to build and construct a water tunnel and shafts in said city from a point on North Green street, near Grand avenue, in a northwesterly direction, to a point in section 35, town 40, range 13 east of third principal meridian, according to the terms, conditions, and directions set forth in the plans and specifications hereto attached and made a part hereof, same being designated in said specifications as ‘third section, eight feet internal diameter.’ It is expressly understood and agreed that all material and excavation taken from the first or easternmost shaft of said section 3 of said tunnel shall be transported, at the expense of said contractors and for the use of said city for filling, to such point within the limits of the so-called proposed ‘Lake Front Park’ as the commissioner of public works may direct, or the same shall be so delivered at any other place or places, not exceeding two and one-half (2 1/2) miles from the top of such shaft, as the commissioner of public works may from time to time direct; and in case the said commissioner of public works, acting for and upon behalf of the city, shall not desire to use any part or portion of such material for filling purposes, then it shall be the duty of said contractors to remove the same at their own expense. The said Weir, McKechney & Co. further agree to have all of said work finished and fully completed on or before the first day of October, A. D. 1897; and, further, that in case of their neglect, failure, or refusal to so complete said tunnel and shafts within the time herein agreed upon, then in such event they hereby agree to forfeit to the city of Chicago the sum of two hundred ($200.00) dollars per day for each and every day after said first day of October, A. D. 1897, that said work shall remain unfinished, and further agree and direct that such sums of money so forfeited shall be retained by said city from any money due and owing to said first parties by said city under this contract, and shall be paid into the city treasury as liquidated damages. All of the material used in said work, manner, time, and place of doing said work, together with all things therewith connected, must be in each and every particular satisfactory to said commissioner of public works. Said work shall be done in accordance with plans prepared for the doing of the same, on file in the office of the department of public works of said city, and with the specifications appended hereto and made a part of this contract. Said work shall be commenced on or before the first day of November, A. D. 1895, shall progress regularly and uninterruptedly after it shall have been begun, excepting as shall be otherwise ordered by the commissioner of public works, and be finished and fully completed on or before the first day of October, A. D. 1897; the time of commencement, rate of progress, and time of completion being essential conditions of this contract. All the work shall be executed in the best and most workmanlike manner, and no improper materials shall be used; but all materials of every kind shall fully answer the specifications, or, if not particularly specified, shall be suitable for the place where used.

‘Should the commissioner of public works deem it proper or necessary, in the execution of the work, to make any alterations which shall increase or diminish the expense, such alterations shall not vitiate or annul the contract or agreement hereby entered into; but the said commissioner shall determine the value of the work so added or omitted, such value to be added to or to be deducted from the contract price, as the case may be. The whole of the work shall be commenced and carried on when and where the commissioner of public works shall direct, and it shall be carried on regularly, so as to give the necessary time for each part to settle and harden, and also for other purposes, as the commissioner may require. In case the commissioner of public works shall think that this is not sufficiently heeded, he may order more men to be employed upon the work, and, if he shall think the work proceeding too rapidly, he may order the employment of a less number of men. Should the weather be unusually wet, or so cold and frosty that any part of the work cannot be done in a proper manner or with due regard to durability, or should such be the case from any other cause,...