City of Port Washington v. Thacher

• Decision Date: 27 July 1917
• Docket Number: 2438.
• Parties: CITY OF PORT WASHINGTON v. THACHER.
• Court: U.S. Court of Appeals — Seventh Circuit

245 F. 94

CITY OF PORT WASHINGTON v. THACHER.

No. 2438.

United States Court of Appeals, Seventh Circuit.

July 27, 1917

Joseph B. Doe, of Milwaukee, Wis., for plaintiff in error.

Albert K. Stebbins, of Milwaukee, Wis., for defendant in error.

Action at law to recover damages arising out of express contract. Verdict and judgment for the plaintiff.

Plaintiff in error, herein called the defendant, entered into a contract with defendant in error, herein called the plaintiff, for the laying of an intake extending into Lake Michigan 2,800 feet, for which the defendant was to pay $10,900, and an additional sum for digging an 800-foot trench as designated, at the rate of $1.37 1/2 per foot. The city engaged a consulting engineer, and employed one Doyle, since deceased, as inspector. Work was begun in April and continued until the fore part of September, 1907. Upon complaint being made, plaintiff returned in October and repaired some defective pipes; the defects consisting of cracks or breaks in certain parts of the pipe. After October, 1907, defendant used the intake continuously, but complained of leaks, and that much sand appeared.

The city made numerous demands upon the plaintiff in 1908 and 1909 to complete the contract according to its terms. In 1900 the city engineer notified plaintiff that the work must be done before August, 1909, or the city would make the repairs itself. Plaintiff insisted that the work was a substantial compliance with the contract. On September 11, 1911, a formal resolution was passed by the defendant, declaring the plaintiff to have abandoned the contract and providing for completion of the work by the city. Shortly thereafter plaintiff appeared with divers to repair any defects, but the city ordered him away. Thereafter the city proceeded to repair the pipe, and found joints disconnected and numerous cracks in the pipe. Its bill for material and services rendered, etc., aggregated $3,873.59.

The specifications contained the following provision: 'When the intake has been completely laid, but before the trench has been filled, the pipe shall be tested with compressed air at a pressure of 100 pounds per square inch; during the test all joints shall be examined by a diver, and all found to be leaking shall be repaired, and broken pipes shall be removed and replaced by perfect lengths. ' No air pressure test was made by the city in 1907, but a water pressure test was attempted, and breaks and cracks were discovered, which plaintiff claims were shortly thereafter remedied. An air pressure test was made by the plaintiff in October, 1907, but there is conflict of testimony as to the results.

The contract provided for extra pay for digging a trench as follows: 'And in addition thereto, the sum of $1.37 1/2 per foot for each foot of pipe buried to a depth of one foot beyond the 400 feet specified in said plans and specifications. ' And again it reads at another place ' * * * And in addition thereto to bury said intake to the depth of one foot for a distance of eight hundred feet ' The specifications covering the same subject-matter provided: 'Before any pipe is laid, a trench shall be dredged so as to give the pipe a cover of one foot where the water is ten feet deep,' etc. A trench in which 800 feet of pipe was laid was dug; the top of the pipe being left level with the lake bottom.

Upon the trial, the court submitted to the jury the issues of substantial compliance and damages. Other statement of facts will appear in the opinion. Plaintiff in error contends the court erred in (a) admitting evidence; (b) in refusing to direct a verdict; and (c) in refusing to grant defendant's motion for judgment notwithstanding the verdict or for a new trial.

Before KOHLSAAT, ALSCHULER, and EVANS, Circuit Judges.

EVANS Circuit Judge (after stating the facts as above).

Error is assigned because the court received evidence over defendant's objection showing the number of bacteria found in the water at various places. In order to show the cracks in the pipe, if any, were insignificant or trivial plaintiff made certain tests. He ascertained the number of bacteria in a given quantity of water 700 feet, 1,400 feet, 2,100 feet, and 2,800 feet from shore. Tests were also made to determine the number of bacteria in the same amount of water at certain places in the city. It appeared that the number of bacteria decreased, the further one went out into the lake. It also appeared that the number of bacteria found in the water in the city corresponded to the number of bacteria found in the same...