City of Detroit v. Porath

• Decision Date: 08 April 1935
• Docket Number: No. 120.,120.
• Citation: 260 N.W. 114,271 Mich. 42
• Parties: CITY OF DETROIT v. PORATH et al.
• Court: Michigan Supreme Court

271 Mich. 42

260 N.W. 114

CITY OF DETROIT

v.PORATH et al.

No. 120.

Supreme Court of Michigan.

April 8, 1935.

Action by the City of Detroit against Julius Porath and another, individually, copartners doing business as Julius Porath & Son, and others.To review an unsatisfactory judgment, plaintiff appeals in nature of a writ of error.

Affirmed.Appeal from Circuit Court, Wayne County; Lester S. Moll, Judge.

Argued before the Entire Bench.

Raymond J. Kelly, Clarence E. Page, and Walter E. Vashak, all of Detroit, for appellant.

Ernest P. LaJoie, of Detroit, for appellees Julius and Edward Porath.

POTTER, Chief Justice.

Plaintiff brought suit against defendant contractors, doing business as Julius Porath & Son, and the sureties upon their bond, to recover damages arising out of an alleged breach of a contract entered into by defendant contractors with plaintiff for the construction of section 1 of the Mill road and Southfield sewer, from River Rouge to Ford road, approximately 8,000 feet in length, by defendant contractors for $690,762.50.The contract was entered into November 3, 1926, and the sewer completed and accepted about one year and nine months later.In February, 1930, a part of this sewer failed, at a point approximately 1,800 to 2,000 feet south of Ford road.Later, another part of it near Ford road collapsed.This resulted in an investigation of the sewer by plaintiff, which employed the so-called Wrentmore commission to determine the cause or causes of the failure, and to plan and supervise the work of reconstruction.The sewer was repaired and the collapsed portions rebuilt by the city under contract with one Healy, for which plaintiff claims $355,411.61 for repairs, including investigation services, labor, and material, and other damages arising from the original defective construction of the sewer contrary to the contract, not included in the part of the same which collapsed, the gross amount claimed upon the trial being $355,411.61, made up of:

+-------------------------------------------------------+
                ¦Cleaning sewer barrel, 0-00 to 80-32.5     ¦$ 32,012.62¦
                +-------------------------------------------+-----------¦
                ¦Uncovering sewer, break No. 2              ¦10,066.28  ¦
                +-------------------------------------------+-----------¦
                ¦Calking sewer                             ¦¦20,665.13  ¦
                +-------------------------------------------+-----------¦
                ¦Sewer repair, concrete, Sta. 0-0 to 1-00   ¦20,814.14  ¦
                +-------------------------------------------+-----------¦
                ¦Sewer repair, concrete, Sta. 28-49 to 37-65¦11,950.32  ¦
                +-------------------------------------------+-----------¦
                ¦Driving Sheeting                          ¦¦19,579.39  ¦
                +------------------------------------------++-----------¦
                ¦Pumping                                   ¦¦35,957.93  ¦
                +------------------------------------------++-----------¦
                ¦Miscellaneous material                    ¦¦3,065.75   ¦
                +-------------------------------------------+-----------¦
                ¦Cost of relining 2856 ft. at $50           ¦142,800.00 ¦
                +-------------------------------------------+-----------¦
                ¦Cost of reconstructing in tunnel           ¦           ¦
                +-------------------------------------------------------+
                

+--------------------------------------------+
                ¦Stat. 61-40 to 63-66, ¦226 ft.  ¦           ¦
                +----------------------+---------+-----------¦
                ¦Sta. 78-82 to 80-32.5,¦150.5 ft.¦           ¦
                +----------------------+---------+-----------¦
                ¦                      ¦---------¦           ¦
                +----------------------+---------+-----------¦
                ¦                      ¦376.5 ft.¦58,500.00  ¦
                +----------------------+---------+-----------¦
                ¦Total                 ¦         ¦$355,411.61¦
                +--------------------------------------------+
                

After the sewer was repaired and the collapsed portions thereof rebuilt, plaintiff instituted suit to recover what it claimed to be its damages, alleging the original contract with defendant contractors had not been carried out:

(1) That inferior material and improper mixing of concrete had been used, resulting in poor concrete, which caused collapse of the sewer.

(2) There had been faulty workmanship and negligent, careless, and improper mixing and placing of concrete by defendant contractors, resulting in a compressive strength lower than required by the contract, plans, and specifications.

(3) The faulty workmanship and negligent, careless, and improper mixing and placing of concrete for construction of the sewer had resulted in its walls being thinner than was required by contract; and the reduction in thickness of the walls of the sewer weakened the structure so as to cause collapse and complete failure of the sewer to carry the sewage and storm water for which it was constructed.

(4) The faulty workmanship and negligent, careless, and improper precautions taken by defendant contractors for obtaining sufficient bond in the joints of the concrete and adequate keys at construction joints resulted in the sewer being insecurely connected together.

(5) The failure to use steel tunnel liner plates at points where soil conditions were such as to make their use necessary to properly place the concrete caused the sewer to collapse and become useless.

(6) The faulty workmanship and negligent, careless, and improper placing of the steel tunnel liner plates by defendant contractors caused the sewer to collapse and become useless for the purposes for which it was constructed under the plans and specifications of the contract.

(7) The faulty workmanship and negligent, careless, and improper mixing and placing of concrete by contracting defendants resulted in porous concrete, which permitted infiltration of ground water and quicksand into the barrel of the sewer, with a consequent displacement of the foundation of the sewer which caused it to collapse.

(8) With the movement and displacement of the foundation of the sewer, the structure, already weak by reason of inferior concrete and thin walls, developed large cracks through which water and quicksand percolated, and the collapse and failure of the sewer became progressive.

(9) The faulty workmanship and inadequate and improper control and management of the construction methods used in building the sewer by contracting defendants resulted in improper alignment of the walls and irregular grade of the sewer which materially reduced the capacity of the sewer and rendered it useless to the city.

(10)Defendant contractors neglected to and did not construct the sewer in accordance with the provisions of the contract, plans, and specifications; the work was not done in a thorough and workmanlike manner.Plaintiff, when it made monthly payments and when it made final payment to defendants, had no knowledge of the defective material and faulty workmanship in the sewer and no knowledge it was not constructed in accordance with the terms of the contract, plans and specifications.

(11) The contracting defendants, their agents, servants, and employees, by fraud and collusion, obtained monthly payments and final payment on the contract from plaintiff, although knowing at the time the sewer was not constructed in accordance with the terms of the contract, plans, and specifications and was defective.

(12) The contracting defendants represented to plaintiff the sewer was constructed in accordance with the terms of the contract, plans, and specifications.

(13) Contracting defendants, in order to conceal faulty construction and defects and failure to comply with the terms of the contract, plans, and specifications, carried on the work of construction so as to conceal such facts from plaintiff.

(14) At numerous places in the sewer, defective concrete was concealed by being plastered over with cement mortar, and, by reason of the failure of defendant contractors to construct the sewer in accordance with the contract, plans, and specifications, and its faulty method of construction, it collapsed and became defective, dangerous, and unsafe, and wholly unfit for the purposes for which it was constructed.

All of these claims upon the part of plaintiff were denied in the several answers filed.

The contract provided the commissioner of public works of the city should issue monthly certificates showing the estimated amount due the contractor, and that the city should audit and allow the amount certified by the commissioner of public works and pay the same to the contractor as partial payments under the contract; that, after satisfactory completion of the work, the commissioner of public works would make final inspection of all the work, make up a final estimate of the amount to the paid the contractor under the contract, and, after the common council had approved the final estimate of work completed, it should be paid to the contractor, less the amount paid under the monthly certificates; the materials used and work done should at all stages be subject to inspection by the commissioner of public works, who was made the sole judge of the amount, quality, acceptability, and fitness of the sewer walls and of the several kinds of work and materials to be paid for under the contract; but the contract provided such inspection by the commissioner of public works should not relieve the contractor from any obligation to furnish material and perform the work strictly in accordance with the contract, plans, and specifications, and, if any materials or workmanship were discovered to be defective prior to final acceptance of the work, it should be removed and made good by the contractors.

Upon trial before a jury, plaintiff recovered a verdict in the sum of 6 cents, and brings this case here by appeal in the nature of writ of error.

Plaintiff here claims the sewer walls were thin; the concrete improperly mixed, was of low compressive strength, porous; the work done in a careless and unworkmanlike manner; the sewer barrel was not round as provided in the contract; the contractor assumed liability which might result from the removing...