City of Monett v. Gillioz
| Decision Date | 16 December 1924 |
| Citation | 266 S.W. 758,217 Mo.App. 418 |
| Parties | CITY OF MONETT, Appellant, v. M. E. GILLIOZ, et al., Respondents. * |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Barry County.--Hon. Chas. L Henson, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John T Burgess, of Monett, for appellant.
(1) The defendant, Gillioz, having entered into contract and bond with said city, that he would construct said reservoir with such materials and in such manner that the same would endure for a period of three years without the need of any repairs on the part of the city, became and was liable and bound, for any repairs necessary to make said reservoir fit for use for the purpose for which it was constructed. "Where a contract specifically makes the attached plans and specifications a part of the contract, a guaranty contained in the specifications binds the contractor. A guaranty that certain work done under such plans and specifications shall or will remain in good condition for a year, is broken if the work fails to remain in good condition for a year, even though the failure was not caused by defective materials, or workmanship. Lake View v. Ritchie, 134 Ill. 208, 25 N.E. 663; Eyermann v. City of St. Louis, 178 S.W 101. "To be guaranteed and keep in repairs for two years" imports that the work and materials shall remain in good order for that time. Erickson v. George B. H. Macomber Co., 211 Mass. 311, 97 N.E. 615; Shoenberger v. Elgin, 164 Ill. 80. The acceptance of the work does not waive a guaranty of the work for a specified period. 9 C. J. page 798; U. S. Fidelity, etc. Co. v. Damskibssaktieselskabet Habil, 138 Ala. 348, 35 So. 344. Holding that the acceptance of work done under a contract to repair a steamship boiler does not constitute a waiver of a six months guaranty contained in the contract. Wadleigh v. McDowell, 102 Iowa 480, 71 N.W. 336. The defendant admits that he, "used a little bit of crushed limestone, some chats, everything we could rake together" and is presumed to have known that the materials used by him were not proper materials for said work, and therefore the plaintiff was not bound by the report of the engineer, that the work was completed in accordance with the contract. Chandler v. Wheeler, 49 S.W. 278. "The fact that plans furnished by builder are defective does not relieve him from liability on a guaranty of his work where he has previously examined the plans." 24 S.W. 546. The city engineer had no authority to verbally change the specifications. The contract and specifications provided that any such change should be made in writing and attached to the specifications and the city was not bound by such change. Sec. 2164, R. S. 1919; Cook & Son v. City of Cameron, 144 Mo.App. 137; Iowa Bonding & Casualty Co. v. City of Marceline, 255 S.W. 577; Likes v. City of Rolla, 184 Mo.App. 296. Even if it should be held that the city engineer had the right to verbally change the specifications from crushed limestone to creek gravel, such change would not release the defendant from his guarantee. The specifications provide for a change and the defendant not objecting to any such change cannot now be heard to say that he is not bound by his guarantee. Howard County v. Baker, 119 Mo. 397, 406; City of Kennett v. Katz Const. Co., 202 S.W. 558, 563; The Ashenboedel Club v. P. J. Finley et al., 53 Mo.App. 256, 260; Orpheum Theater & Realty Co. v. Kansas City Casualty Co., 239 S.W. 841; Baylies v. Bent, 185 Ill.App. 437; The City of St. Louis v. Davidson, 102 Mo. 154; Hannan Hickey Bros. Const. Co. v. Chicago, B. & Q. R. Co., 247 S.W. 436, 440. If the defendant made an improvident contract, he has to bear the consequences. If he did not wish to guarantee all the materials used he should have so provided by his contract; and having, "guaranteed by his contract and bond that he would construct said reservoir with such materials and in such manner that the same would endure for a period of three years from its completion without the need of any repairs," he is bound to make good the cost of any needed and necessary repairs to make the reservoir fit for the purpose for which it was constructed. 74 Mo. 364, 371; Paradine v. Jane, Alleyn, p. 26; Davis v. Smith, 15 Mo. 306; State v. Bland, 256 S.W. 757, 759-760; Vincent v. Morrison, 58 Mo.App. 497, 501; City of St. Louis v. Missouri Granite Const. Co., 185 S.W. 188. And for the above reasons the court erred in not giving said instruction "E" for plaintiff. (2) The court erred in refusing to give plaintiff's instruction "F." It covered the entire case as made by the testimony on behalf of plaintiff, and should have been given to the jury. (3) The court erred in refusing to give plaintiff's instruction "H" to the jury. The specifications and contract provided that changes might be made in the specifications and that any such change should not invalidate the contract. Therefore, said instruction should have been given. (4) The court erred in giving instruction No. 1, of its own motion to the jury, on behalf of plaintiff, by telling the jury they should find for plaintiff, "unless you find from the evidence that such leak or leaks, if any, were caused from substitution by direction of the city engineer of creek gravel for crushed stone, specified in the specifications." The above part of the instruction was erroneous in that, that it totally ignored the contract and specifications. The specifications plainly say they may be changed without invalidating the contract, and for the further reason there was no evidence tending to show that the defects in the reservoir were caused by creek gravel. Neither does the evidence show that defendant objected to such change. Howard County v. Baker, 119 Mo. 397, 406; City of Kennett v. Katz Const. Co., 202 S.W. 558, 568; The Ashenboedel Club v. P. J. Finley, 53 Mo.App. 256, 260; Rude v. Mitchell, 97 Mo. 365. (5) The court erred in giving instruction No. 3 on behalf of the defendant for the reason that the contract and specifications provided that changes could only be made in the same, by writing, and any change in the specifications made verbally by the city engineer was not binding upon the plaintiff. If the plaintiff city could be bound by any changes made by the engineer such changes would have to be made in accordance with the terms of the contract and specifications. Sec. 2164, R. S. 1919; Cook & Son v. City of Cameron, 144 Mo.App. 137; Iowa Bonding & Casualty Co. v. City of Marceline, 255 S.W. 577; Likes v. City of Rolla, 184 Mo.App. 296. However, if such change was one that could be legally made by the city engineer, then the instruction would still be erroneous. The contract and specifications provided that changes might be made in same without invalidating the contract. Baylies v. Bent, 185 Ill.App. 437; Howard County v. Baker, 119 Mo. 406; City of Kennett v. Katz Const. Co., 202 S.W. 563; The Ashenboedel Club v. P. J. Finley et al., 53 Mo.App. 260; Rude v. Mitchell, 97 Mo. 365; Orpheum Theater & Realty Co. v. Kansas City Casualty, 239 S.W. 841.
H. A. Gardner, of Monett, for respondent.
(1) It is elementary that the law in force at the time of the execution of a contract enters into and becomes an integral part of the same. Parks v. Connecticut Ins. Co., 26 Mo.App. 511; Kessler v. Clayes, 147 Mo.App. 88; Kavanaugh v. Royal League, 158 Mo.App. 234-245. (2) Even though plaintiff stood apparently shielded with a written guaranty and maintenance bond for a period of three years, yet it was the duty of plaintiff upon the completion and acceptance of said reservoir, to use ordinary care and diligence in the maintenance and care of same. Freidenrich v. Condict, et al., 109 N.Y.S. 526; Mayer Bros. Const. Co. v. American Sterilizing Co., 101 A. 102; R. F. Conway Co. v. City of Chicago, 113 N.E. 703; District of Columbia v. Clephane, 110 U.S. 212, 3 S.Ct. 568, 28 L.Ed. 122; Filbert v. City of Philadelphia, 37 A. 545; MacKnight-Flintic Stone Co. v. Mayor, et al., 54 N.E. 661; Asphalt Company v. St. Louis, 188 Mo. 576, 579. (3) Even though the specifications were deviated from, if the change was at the instance and request of the plaintiff dictated and suggested by plaintiff's engineer, the plaintiff cannot complain of the substitution or the change in material, and defendant was relieved from his guaranty in that respect. Freidenrich v. Condict, et al., 109 N.Y.S. 526; Mayer Bros. Construction Co. v. American Sterilizing Co., 101 A. 1002; Murray v. California Conserving Co., 193 P. 959; State ex rel. Davvison v. Hallis, et al., 124 N.E. 515; Moors v. Kentucky Electrical Co., 208 S.W. 15; Funk v. Urton, 44 Mo.App. 607. (4) Plaintiff's engineer, by authority having ordered the creek gravel substituted for limestone, worked an estoppel against plaintiff to complain of this change. Lamar Township v. City of Lamar, 261 Mo. 184; Sparks v. Jasper County, 213 Mo. 218, 242; Simpson v. Stoddard County, 173 Mo. 466; Railroad v. Marion County, 36 Mo. 294; Dunklin County v. Chateau, 120 Mo. 594; Boone County v. Railroad, 139 U.S. 684; State ex rel. v. West, 68 Mo. 229. (5) Defendant is not responsible for any failure to perform the work according to the guarantee if such failure is caused by his doing the work under protest, in the manner directed by the owner. Freidenrich v. Condict, 124 A.D. 807, 109 N.Y.S. 526; Construction Company v. Sterilizing Co., 258 Pa. 217, 101 A. 1002; Boone v. Jones, 144 F. 942, 6 L. R. A. (N. S.) 744; Railroad v. Goss, 203 F. 910; Penn Bridge Co. v. City of New Orleans, 222 F. 742.
Action on bond of M. E. Gillioz as contractor. Judgment for defendants and plaintiff appealed.
Gillioz was awarded a contract to build a...
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