City of Peoria v. Fruin-Bainbrick Const. Co.

• Citation: 48 N.E. 435,169 Ill. 36
• Parties: CITY OF PEORIA v. FRUIN-BAINBRICK CONST. CO.
• Decision Date: 08 November 1897
• Court: Supreme Court of Illinois

169 Ill. 36

48 N.E. 435

CITY OF PEORIA

v.FRUIN-BAINBRICK CONST. CO.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from appellate court, Second district.

Action by the Fruin-Bainbrick Construction Company against the city of Peoria. From a judgment of the appellate court (68 Ill. App. 277) affirming a judgment for plaintiff, defendant appeals. Reversed.

W. T. Irwin, City Atty. (Stevens, Horton & Abbott, of counsel), for appellant.

Arthur Keithley, for appellee

WILKIN, J.

This is an action of assumpsit in the circuit court of Peoria county by the Fruin-Bainbrick Construction Company, appellee, against the city of Peoria, to recover for improving Perry street with asphalt pavement. On April 4, 1894, an ordinance was passed by the city of Peoria for paving Perry street, which provided that the asphaltum to be used should be ‘equal to the best quality obtainable from the Pitch Lake in the Island of Trinidad,’ and the contract entered into between the construction company and the city of Peoria contains the provision that the quality of asphalt shall be ‘equal to the best quality obtainable from the Pitch Lake in the Island of Trinidad, unmixed with coal tar or any of its products; it must be carefully refined, and brought to a uniform standard of purity and gravity.’ It also provides that ‘samples of the pavement mixture used each day should be furnished to the city engineer’; also, ‘All materials of whatever character, not acceptable by the engineer, will be considered rejected, and immediately removed from the vicinity of the work;’ also, ‘The work shall be begun at such points and at such time as the department of public works shall direct, and no block shall be closed to the public except when the contractor is actually working;’ also, ‘In the interpretation of these specifications, and upon all questions concerning the execution of the work, the decision of the commissioner shall be final;’ that the entire work shall be done ‘under the direction of the city engineer, and to the entire satisfaction of the city engineer and commissioner of public works'; and that compensation for 95 per cent. of the work shall be made only after it is completed ‘to the entire satisfaction of the commissioner of public works and the city engineer,’ and the remaining 5 per cent. shall be paid at the end of six months ‘upon the approval and acceptance of the whole work by the commissioner of public works and the city engineer.’ On the 23d of August, 1894, after the work of improving had begun, the commissioner of public works notified appellee by letter that he had made an inspection of the asphaltum it intended to use on the street, and found it did not fill the requirement of the ordinance and the contract, and told it not to place that kind of asphalt upon Perry street, as the work would not be accepted. Notwithstanding the notice, appellee went on with the work, and completed it. The work was not superintended by the city engineer, no estimate of the work made by him, and no acceptance of it by the commissioner of public works. The work not being accepted by the city, appellee brought this suit to recover for making the improvement. The declaration consisted only of the common counts, with a copy of the account sued on, to which the city filed the plea of the general issue, and nul tiel corporation, and upon these issues alone the case was tried, resulting in a verdict for the construction company of $55,794.19, and upon appeal...