City of Salisbury v. Lynch-McDonald Const. Co.

• Decision Date: 07 April 1924
• Docket Number: (No. 15010)
• Citation: 261 S.W. 356
• Parties: CITY OF SALISBURY, v. LYNCH-McDONALD CONST. CO.
• Court: Missouri Court of Appeals

261 S.W. 356

CITY OF SALISBURY, v. LYNCH-McDONALD CONST. CO.

(No. 15010)

Kansas City Court of Appeals. Missouri.

April 7, 1924.

Rehearing Denied May 6, 1924.

Appeal from Circuit Court, Howard. County; A. W. Walker,. Judge.

"Not to be officially published."

Action by the City of Salisbury against the Lynch-McDonald Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Richard K. Bridges, of Fayette, and Willard P. Cave, of Moberly, for appellant.

Collet & Son, of Salisbury, for respondent.

TRIMBLE, P. J.

Defendant, under a contract with the city of Salisbury to sink a well to be used as a source of supply for its waterworks, undertook to put said well down. During the course of the work, plaintiff, pursuant to contract, paid on the contract price, (which was $3,575) the sum of $1,399.50 on April 1, 1921, and the further sum of $1,503 on May 4, 1921, aggregating the sum of $2,902.50. Contending that defendant failed to perform its contract, but constructed said well improperly so that sand was allowed to come without obstruction into said well, thereby rendering the same worthless, the city brought this suit to recover the money so paid and interest thereon from the respective dates of payment.

The answer contained a general denial and then pleaded that defendant "complied with all the terms of said contract on its part, and constructed said well strictly in accordance with the plans and specifications furnished it by plaintiff." Said answer admitted that the sums alleged in the petition were paid, and alleged that $672.50 was still due, and set up that defendant's "said work was properly done, and that, if said well failed to furnish the amount of water expected by it, said failure, if any, was not caused or occasioned by any act, neglect, or default of his defendant," that the plans and specifications for said well were prepared by engineers employed solely by plaintiff, and defendant "followed and worked according to same, and that it ought not to be held responsible for defects and errors in said plans, and, if said well was, and is, a failure as alleged by plaintiff, such failure was, and is, directly caused and occasioned by reason of such plans and specifications," etc.

The answer then went on to set forth that plaintiff and its engineers, in preparing said plans and specifications, failed to take into account a very thick stratum of quicksand and made no allowance therefor, hut in said plans provided for openings in the walls of said well where there were water-bearing sands and gravel of great thickness, when, in fact, said walls, where openings were so provided, were surrounded by quicksands only and not by coarse water-bearing sand and gravel, by reason of which quicksand poured through said openings into said well, filling same to a great depth, such result being caused solely by the defective plans and specifications provided by plaintiff.

The answer then counterclaimed for the balance alleged to be due on the contract price, to wit, $672.50.

The answer further set up that defendant performed the contract on its part according to the plans and specifications furnished by plaintiff; that these plans and specifications called for certain reinforcements to strengthen the walls, but by reason of defects in said plans the wall broke and defendant, in order to save said well, notified plaintiff of the condition of said wall, and that defendant would, unless directed by plaintiff not to do so, repair said break and rebuild said wall at the expense of plaintiff ; that plaintiff permitted defendant to perform said work at an outlay of $3,088.63 in cash, all made necessary by the failure of the plans and specifications to provide for the necessary and proper reinforcements for said wall, wherefore judgment for said last-named amount was also prayed.

While no reply was filed, yet the case was tried if one had been, and hence the failure to formally file one is of no consequence.

The jury returned a verdict in plaintiff's favor for $3,203.05, being the amount of payments sued for, with interest from date of such payments, and also found for plaintiff on defendant's counterclaim for the $672.50, the balance of the contract price. Defendant's claim for the $3,088.63 was withdrawn from the jury by the trial court. From a judgment on said verdict, the defendant has appealed.

There is no question but that the plans specifications for the well, and the preliminary tests or boring into the earth in which the well was to be sunk, were made entirely by the city and its engineers; and the plans and specifications called for the construction of the well corresponding to the conditions in the earth as disclosed by said preliminary tests or borings.

The location of the well, in the proposition on which the contract was based, was about a mile from Salisbury in the bottom land of the middle fork of Chariton river. And the terms of the contract called for the sinking of what is known as an open well of 10 feet inside diameter at the bottom, and to go approximately 38 feet below the ground line to the clay. The lower 12 feet of the well was to be curbed with a 17-inch, hollow, gravel-filled wall, said 12 feet being the "part which will admit water to the well." The upper 26 feet of said wall was to be curbed with a solid 13-inch brick wall. Said wall, both of the lower 12 feet and of the upper 26 feet, was to be constructed as shown on the plans and was to extend six feet above the surface of the ground. The specifications provided that the well should be excavated 12 feet, 10 inches outside diameter, and 38 feet deep. They further stated that "ordinary soil will probably be found to extend to a distance of about 24 feet below the surface About 2 feet of quicksand will be found, below which is 12 feet of water-bearing sand and gravel."

It was provided in the specifications that the well should be sunk in "the usual manner of open excavation" as far as possible, and then a steel shoe should be placed in the well and the wall built on this shoe, which should be left in place at the bottom of the well on the completion thereof. The excavation and the construction of the curb or wall was permitted to be carried on simultaneously ; the curb sinking of its own weight. The material might be excavated in the ordinary way, or dredged out without attempting to keep out the water, "or by any other method that the contractor may devise to allow the shoe and curb to sink gradually and evenly."

The steel shoe was a circular rim 17 inches high, fitting into the excavation, the lower side of said rim having the cutting edge of a chisel, while on the upper edge of said rim was a horizontal flange 18 inches wide resting on said upper edge and also on a brace running, at an angle of 45 degrees, up from all points around the perimeter of the lower or cutting edge and on the inside of said rim, so that the shoe resembled a huge hollow circular chisel of a size fitting into said excavation whereby, as the wall or curb of the well was being built on the flange of this circular chisel with its cutting edge pointing straight down, the weight thereof would cause the shoe and wall thereon to settle, evenly and on a level, simultaneously with the excavation or removal of the material in the well. So that, when the well was sunk to the depth required, the shoe would be resting firmly and evenly with its perpendicular blade 17 inches in the clay and the wall or curb, resting on said shoe and the flange thereof, would extend from the clay upward to the surface of the ground and to the height above the ground called for in the contract. In this way no sand or other material could come into the well under the wall, because the shoe, being embedded chisel like in the clay and its top or flange resting thereon, would exclude it.

The well was begun by making a circular excavation to a depth of 4 or 5 feet, and then the circular chisel-edged shoe was placed therein.

The plans called then for the construction of said wall or curb on said shoe as follows:

First, a concrete ring of the width of the flange and 9 inches high was to be placed on the shoe. Then upon this concrete rim was to be built a "strainer wall" 3 feet high, made by building a brick wall 9 inches thick around the outer side of the horizontal top of the shoe, which brick wall was to have openings therein as per plan. Then a 4-inch space was to be left on the shoe, and, on the other 4 inches of the flange, another brick wall 4 inches thick was to be built with openings therein called for in the plans. The 4-inch space between the two brick walls was to be filled with carefully selected and graduated gravel. This section of wall 3 feet high formed a "strainer section" for the admission of water into the well. On top of this, a ring of reinforced concrete 6 inches high was to be built, and then on top of that was to be two more "strainer sections," each 3 feet high, with a 3-inch ring of reinforced concrete between the two and one on top. Thus a "strainer section" of about 12 feet in height would be made, the whole tied together by vertical steel bars running from the shoe to the concrete rim on top of the strainer section, the weight of which would be about 30 tons. The wall and strainer section weigh about 90 tons. On top of this strainer section was to be built a solid brick wall, 13 inches thick, extending from the upper concrete ring to a point 6 feet above the surface of the ground, the part above the ground to be drawn in, like a jug, to a diameter of 5 feet, and on the top thereof was to be a flat cast iron cover.

The plans also contained a "log" or record of the material to be encountered in sinking the well as disclosed by the preliminary tests or borings made by the city. This showed that from the then present ground level down a distance of 24 feet the earth was ordinary soil, then came 2 feet of quicksand, extending to the 26-foot level...