City of St. Charles v. Stookey

• Decision Date: 11 June 1907
• Docket Number: 2,508.
• Citation: 154 F. 772
• Parties: CITY OF ST. CHARLES v. STOOKEY.
• Court: U.S. Court of Appeals — Eighth Circuit

154 F. 772

CITY OF ST. CHARLES v. STOOKEY.

No. 2,508.

United States Court of Appeals, Eighth Circuit.

June 11, 1907

(Syllabus by the Court.)

An action for the contract price may be maintained either upon the contract, upon an allegation of performance, or upon a quantum meruit, where one has substantially though not completely performed his agreement, and the other party has received and retained the benefits of such performance. The other party, however, may recover the damages he has sustained by the failure of the first party to completely perform, either by an independent action before he is sued or by a counterclaim after suit has been commenced against him.

A count upon the contract and one upon the quantum meruit for the same relief may be submitted to a jury together, under an instruction that there can be but one recovery.

In an action on a quantum meruit for the value of the work and materials furnished under a contract partially performed, the latter is evidence of their value.

A general verdict on several counts in a complaint and several counterclaims in an answer is sufficient in a national court in an action at law, although several or special verdicts are required in such cases in the courts of the state in which the trial is had.

The act of conformity (section 914, Rev. St. (U.S. Comp. St. 1901, p 684)) does not require the courts of the United States to adopt any rule of pleading, practice, or procedure enacted by state statute or announced by the decision of a state court which would restrict their jurisdiction, or unwisely incumber the administration of justice in their tribunals. It only requires conformity 'as near as may be.'

Conformity of practice in common-law actions to that of state court, see notes to 5 C.C.A. 594; 27 C.C.A. 392).

The power of an arbiter is exhausted by a final award, and he may not subsequently modify, revoke, or annul his finding, or make a new award upon the same issues.

An engineer empowered by the parties to an agreement to determine when it was completed to his satisfaction, and when 15 per cent. of the price, which was to be retained until that time, was due, made a final estimate in which he certified that this 15 per cent. was due on January 5, 1903. On November 5, 1903, he made another final estimate, wherein he charged the contractor $5,667.10, which did not appear in his former estimate. Held, the power of the engineer to determine that the work was completed and that the 15 per cent. was due was exhausted by his first estimate, and the second was not binding upon the parties.

The presentation of a claim to a city is not indispensable to the maintenance of an action upon it, under Sec. 5854, Rev. St Mo. 1899. The only penalty for a failure to present it is disallowance by the city, and, if the claim is unliquidated, the loss of costs.

The legislative body of a city may act by resolution or motion, unless the charter or statute from which it derives its powers requires it to act by ordinance. Sections 5838 and 5846, Rev. St. Mo. 1899 (Ann. St. 1906, pp. 2951, 2955), do not require the passage of an ordinance to extend the time for the performance of a contract with the city, but its city council may grant such an extension by motion or resolution.

The plaintiff pleaded an extension of time to a later date, 'to wit November 1, 1902' and then proved its extension 'at least sixty days' from September 1, 1902. Held, pleading a date under a videlicet does not hold the pleader to the exact date named, and he is not estopped thereby to prove a near but different date.

An extension of 'at least 60 days' is an extension for an indefinite time not less than 60 days, and gives a reasonable time after the 60 days expire.

An engineer was an employe of the city and also an arbiter under a contract between the city and the contractor, empowered to direct the latter to do extra work with the approval of the city council, and to decide all questions which should arise relative to the installation of waterworks by the contractor. After the works had been substantially completed to the satisfaction of the engineer, and had been in the use of the city for three months, a break and leak occurred in the settling basins which rendered them unfit for use. Thereupon, by direction of a committee of the city council, the engineer notified the contractor to repair the basins and to make them water tight, or that the city would do so at his expense. The contractor answered that he was not responsible for the break, and that he would not repair it. Held, the engineer was acting as the agent of the city and not as an arbiter in giving the notice, and his letter which contained the notice was not his decision as arbiter, either that the contractor was responsible for the repairs, or that they were extra work under the contract.

Shepard Barclay (Thomas T. Fauntleroy, on the brief), for plaintiff in error.

Fred B. Merrills and Daniel N. Kirby, for defendant in error.

Before SANBORN and HOOK, Circuit Judges.

SANBORN Circuit Judge.

In this case the plaintiff below, Charles A. Stookey, recovered a judgment of $10,695.82, the unpaid balance of the agreed price of the construction of a system of waterworks, which consisted of three settling basins, boilers, pumps, power house, pipes, distribution mains and hydrants, for the city of St. Charles The contract price of the works was about $84,000, and the city had paid the contractor about $75,000, and had taken possession of and was using the works. They had been built under written contracts and specifications, which provided that the contractor should make excavations as directed by the engineer; that the engineer should stake out all work; that the engineer might make alterations in line, grade, form, or dimensions of the work; that the engineer should in all cases, decide all questions which might arise relative to the installation of the plant by the contractor; that his estimates and decisions should be final and conclusive; that the contractor should be responsible for the entire work as a whole until its acceptance by the city; that the settling basins should be filled with water, and should stand until proved to be water tight to the satisfaction of the engineer; that 'all leaks, breaks, or defects caused by improper material or workmanship that develop within six months after the plant is accepted by city must be repaired or replaced by contractor; that the contractor shall do such extra work, in addition to his contract, as the engineer may direct in writing, subject to the approval of the council'; that estimates should be made, and 80 per cent. thereof should be paid monthly as the work progressed; that 'when contract is completed and tested to the satisfaction of the engineer and all repairs made, 15 per cent. of the contract price will be paid the contractor'; and that the remaining 5 per cent. should be paid, one-half in three months and one-half in six months after the acceptance of the plant by the city, less the amount, if any, due the city for repairs to the plant.

Early in January, 1903, the plant had been constructed and tested to the satisfaction of the engineer, and on January 5, 1903, he made a final estimate, subject to such exceptions as might be taken into account by the committee in charge, in which he certified the full amount of the bid for the three settling basins, to be earned and the 15 per cent. payable when the work was completed to his satisfaction and when all repairs were made, to be due. The committee made certain specifications of defects, which the contractor subsequently proceeded to remedy. They inspected and tested the works, and on January 15, 1903, pursuant to a recommendation of the committee, the city paid the contractor $12,000 on this estimate. On February 9, 1903, the city took and thereafter retained possession of the waterworks system. From time to time, as requested, the engineer stopped leaks in the basins and made repairs, which he completed before May 20, 1903. About May 25, 1903, a portion of the east wall of two of the settling basins tipped toward the east, and cracked the floor and the ends of two of the basins so that they would not hold water. The city subsequently repaired this break at a cost of $5,667.03, and the meritorious issue in this case is whether the contractor or the city should bear the expense of these repairs. There was evidence, on the one hand, that this break was caused by improper material and workmanship furnished by the contractor, that the floors of the basins were not covered with the specified thickness of cement, so that the leakages through them undermined the east wall and produced the break. On the other hand, there was testimony that this break was caused by the direction of the engineer to locate the east wall so that a portion of it rested upon earth, sand, and silt, and by his direction not to remove this soft material and place the foundation of the wall upon the solid rock below so that the portion of the wall upon this silt and sand settled more than the remainder of the wall and of the basins which rested on solid rock, and that the crack in the basins was caused by this settling. The issue which this evidence presented was submitted to the jury under proper instructions, and they found that the misdirection of the engineer was the real cause of the break, and that it was not produced by the plaintiff's improper workmanship or material. There was sufficient evidence to sustain this conclusion, and in the consideration of the case in this court that must be deemed to be the fact.

The first contention of counsel for the city is that the court erred because it did not instruct the jury to return a verdict for the city. They say: ...