City of Seaside v. Randles

• Decision Date: 22 April 1919
• Citation: City of Seaside v. Randles, 92 Or. 650, 180 P. 319 (Or. 1919)
• Parties: CITY OF SEASIDE v. RANDLES ET AL. [a1]
• Court: Oregon Supreme Court

180 P. 319

92 Or. 650

CITY OF SEASIDE v. Supreme Court of Oregon

April 22, 1919

In Banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by City of Seaside, a municipal corporation, against C. G Randles and another. Judgment for the plaintiff, and defendants appeal. Affirmed.

This is an action to recover damages for the failure of defendant Randles to construct a sewer in the city of Seaside in accordance with his contract and the plans and specifications. The defendant Randles' surety, the Ætna Accident & Liability Company, hereinafter referred to as surety, is also made a party defendant. The cause was tried by the court and a jury, and a verdict rendered in favor of plaintiff. From a consequent judgment defendants appeal.

On July 7, 1914, plaintiff and defendant Randles entered into a written contract whereby Randles agreed, for certain unit considerations therein expressed, to furnish all materials perform all labor, and construct for plaintiff in the city of Seaside a sewer system which included one main sewer with some 250 laterals, also including several manholes, etc according to the plans and specifications which were made a part of the contract, and which are set out in full in the complaint. Those portions of the specifications which particularly bear upon the issues involved are as follows:

"2. Plans. This sewer shall be constructed in accordance with the plans and specifications on file in the office of the city auditor and police judge. * * *"

"8. Inspection. The contractor shall not begin work on this sewer until he has notified the engineer and an inspector has been placed in charge of the work. It shall be the duties of the inspector to direct the construction of the work and the manner of carrying on the same; also to inspect all materials used on the work and to approve or reject the same. No material of any kind shall be used on any part of this work until inspected and approved by the engineer or inspector, and all rejected or condemned material shall be removed from the work at once. Instructions given by the inspector shall be respected and executed by the contractor, but no inspector shall have the power to waive the obligations of the contractor to furnish good materials or perform sound and reliable work as herein specified; and any failure or omission of the inspector or engineer to condemn any defective material or work shall not release the contractor of the obligation to at once tear out, remove, and properly reconstruct the same at his own cost at any time upon the discovery of the defect, and upon receipt of the notice of the engineer to do so. No part of this sewer shall be constructed in the absence of an inspector, and any work so performed shall be deemed in violation of these specifications, and the engineer may order the same to be removed by the contractor and reconstructed at once. Upon the neglect or refusal of the contractor to reconstruct work rejected by the engineer within 24 hours after receipt of notice, the same may be removed and reconstructed under the direction of the engineer at the expense of the contractor."

"16. Laying. Before being laid, all pipe shall carefully be examined and passed upon by the inspector. The accepted pipe, before being lowered into the trench, shall be fitted together, matched, and marked in the order in which they are to be laid. The trench shall be carefully shaped and graded to the line and grade given by the inspector. Crosscuts deep enough to receive the bell of the pipe shall be cut in the bottom of the trench, so that the pipe has a solid bearing along its entire length; before being laid, the outside of the spigot and the inside of the bell shall be carefully cleaned. The lower half of the bell of the preceding pipe shall be filled with cement mortar before the insertion of the spigot end; the pipe shall then be pressed into place so that the spigot end will be not more than one-quarter (1/4) of an inch from the shoulder of the bell, care being taken to have the inside surfaces of the pipes flush and even. The bell shall then be filled flush with the outside all around, with cement mortar pressing it into shape with the hand, carefully rounding it off at least one inch on the body of the entering pipe. After being laid, the joint of each pipe must be carefully scraped smooth with a circular disk or swab to remove any surplus cement. After the pipe has been laid and cemented fine earth or sand shall be carefully rammed under and halfway up the sides of the pipe before the next is laid.

"The cement mortar shall be composed of one part cement and two parts sand.

"The joints of all sewer pipe laid below an elevation of 7 feet, approximately 3,000 lineal feet, shall be laid with a gasket of oakum dipped in hot asphaltum of the proper consistency. The oakum gasket when thoroughly compacted with a caulking iron shall fill the bell to one-half (1/2) its length, after which the joint will be cemented in the usual manner. * * *"

"29. Terms. The contractor will be paid monthly a sum equal to eighty per cent. on all finished work, and each class of work as set forth in these specifications shall be considered separately and paid for; the remaining twenty per cent. shall be paid upon the completion of the entire contract."

At the same time and as a part of the contract defendant Randles, as principal, and defendant Ætna Accident & Liability Company, a surety company, as surety, executed a bond in the penal sum of $12,921, guaranteeing the full and faithful performance of the contract, as well as the payment by the contractor for all material used in the construction of the sewer and labor performed thereon. The bond, a copy of which is set forth in the complaint, contained all the statutory requirements.

Upon the execution of the contract Randles commenced work on the sewer system, and continued working thereon until the 22d day of September, 1914, when he represented to the plaintiff that he had fully completed the same in accordance with the contract. Thereupon plaintiff, as it alleges, having no knowledge to the contrary, and believing that the sewer had been properly completed and the work done in accordance with the plans and specifications, accepted the work and paid Randles in full therefor the sum of $12,885; that defendant Randles failed in several particulars to construct the sewer system in accordance with the plans and specifications; a part of the allegations in regard thereto being as follows:

"This plaintiff alleges that the said defendant Randles made the necessary excavation for the trenches for the main sewers to the proper depth, but fraudulently, and for the purpose of cheating, wronging, and defrauding this plaintiff, and for the purpose of securing the payment of the contract price for said work without performing the contract without the knowledge of plaintiff, secretly and fraudulently, in the laying of said sewer pipe above seven-foot elevation and also below seven-foot elevation, both in the main and laterals and branches, neglected to and did not fill the lower half of the bell of any pipe with cement mortar before or after insertion of the spigot end, which will be hereinafter referred to, for the sake of brevity, as joints of the pipe, but placed and laid said pipes together, namely, the spigot end into the bell end without placing any cement in the lower portion thereof, namely, the portion thereof lying upon the bottom of the trench, not exposed to view from the top or sides of the trench, being about one-fourth of the circumference of the pipe, such portions being left wholly without any cement mortar.

"This plaintiff further avers that the said defendant Randles purposely, secretly, and fraudulently, with the intent and purpose aforesaid, and without the knowledge of plaintiff, in all that portion of the sewer pipe, including laterals, laid in trenches above the elevation of seven feet, did not place in the joints between the spigot end and the bell end of the sewer pipe resting upon the bottom of the trench, and not exposed to view from the top or sides of the trench, being about one-quarter of the circumference of each pipe, any cement mortar, or any mortar at all, and in all portions of said sewer pipe laid below the elevation of seven feet did not place in that portion of the joints or spigot end and bell end lying at the bottom of the trench, not exposed to view from the top or sides of the trench, being about one-quarter of the circumference, either oakum or cement mortar, or any filler at all, but left such portions of such pipes in each of said elevations, both above and below seven-foot elevation, throughout the entire pipe or sewer line, entirely open and unclosed, so that water, gas, and sand could pass freely from the outside into the inside of each joint of sewer pipe laid, and earth, water, and gas did so pass, accordingly as hereinafter mentioned, all of which was done secretly and purposely by said defendant, for the purpose of cheating and defrauding plaintiff and without the knowledge or consent of plaintiff.

"That in all that portion of said sewer pipe above an elevation of seven feet exposed to view from the top and sides of the trench, being about three-fourths of the circumference of each joint, the defendant placed cement mortar, not of the consistency of one part of cement to two parts of sand, but a mortar consisting of a very small portion of cement, mixed with earth, débris, and a large quantity of sand, and without any consistency, and worthless for the purposes intended and required by said specifications.

"That in all that portion of said sewer system which required trenches to be excavated below an elevation of seven feet which plaintiff avers...