"The city of St. Louis brought this action upon the bond of defendants. Ruecking & Eistrupp, copartners, and their surety, said bond being conditioned upon the faithful performance of a contract to construct a certain sewer for the city. The petition alleged: That on October 17, 1901, the appellant entered into a contract with Ruecking & Eistrupp, contractors, by the terms of which they agreed to build a certain sewer in a workmanlike manner, according to plans and specifications on file in the office of the sewer commissioner of the city of St. Louis. That by said plans and specifications defendants were required to use sewer pipe of the best quality of hard burned, salt glazed, vitrified
clay pipe. That the pipes should be joined by filling the sockets with a mortar made of one part of Portland cement and three parts sand, and with only water enough to give a proper consistency and to be used as soon as made. That great care should be taken to make the entire joint perfectly water-tight. That the space between the pipes when not laid in concrete and the sides of the excavation should be filled with sand, well rammed up to the middle of the pipe, and that from this point for at least 12 inches above the pipe the earth should be filled in so as not to disturb the pipe, and thoroughly rammed or soaked with water as might be directed. That during freezing weather laying of pipe sewers should as a rule be suspended, unless otherwise directed by the sewer commissioner.
"Plaintiff alleged as breaches the violation of all the above specifications, in the words of the petition, as follows: `The said defendants Herman Ruecking and Frederick Eistrupp did fail, neglect, and refuse to comply with the specifications and stipulations of the said contract, in this, to wit: that in doing the work undertaken by them in the said contract they failed, neglected, and refused to do the same in a substantial and workmanlike manner; that certain 24-inch pipes laid by the said defendants in Grand avenue from Delor street northwardly to Itaska street, in said Fillmore street sewer district No. 2, were not of the best quality of hard burned, glazed, vitrified clay pipe, but the said pipes were insufficiently burned, were soft and porous in texture, were not vitrified and were not of the best quality; that in certain places where the said pipes were, or should have been, joined, the sockets were not filled with mortar as in the said contract required, and the said joints were not made perfectly water-tight as therein required; that at the places above mentioned the space between the pipes (when not laid in concrete) and the sides of the excavation were not filled with sand well rammed up to the middle of the pipe, nor was the earth filled in for at least 12 inches above the pipe so as not to disturb the pipe, nor was the same thoroughly rammed or soaked with water; that during the freezing weather the laying of pipe sewers was not suspended.' Plaintiff further alleged: That the work in said contract provided for was completed and accepted by plaintiff on or about 24th of October, 1903, and was fully paid for. That on or about the 8th of August, 1904, the plaintiff through its agents, the sewer commissioner and subordinates, discovered that certain 24-inch pipes laid by said defendants in Grand avenue from Delor street northward to Itaska street were broken and cracked. That defendants were notified to replace the same with new pipe, which they refused to do. That the city thereafter caused the broken and cracked pipes to be removed and replaced them with new pipes at a cost of work and material of $1,598.41 to the city. Then follows prayer for judgment.
"Defendants' answer, after formal admission as to the capacity of the parties and the execution of the contract and bond mentioned in the petition, contained a general denial of the other allegations of the petition, and further answered by alleging that defendants faithfully performed all work required by the terms of said contract and the plans and specifications prepared by the plaintiff; that whatever defects were discovered by plaintiff's agents were caused by the faulty plans and specifications which called for the best quality of 24-inch hard burned, soft salt glazed, vitrified clay pipe, which kind of pipe was too weak, insufficient, and inadequate for the purpose for which it was specified. They further aver an inspection and acceptance of the material and work as the construction progressed, as well as a final acceptance and payment for the work.
"The reply denied the new matter set up in the answer.
"At the beginning of the trial defendants demurred to the introduction of evidence, which demurrer was overruled. Plaintiff introduced in evidence a certified copy of the contract and specifications and plans as proof of the plans and specifications alleged to have been violated and disregarded by defendants. After evidence was heard upon both sides and the cause submitted to a jury, a verdict signed by nine jurors was returned in favor of the defendants. Judgment followed the verdict, and, after timely motions and other required steps being taken, the cause is here upon appeal of the city. Complaint is largely lodged against instructions, and these with the pertinent facts will be taken with the points made.
"(1) Among other things the following appear: There was proof on both sides as to the character of the tiling used. It stood admitted that the contractors had not used the sand in packing the tile, but had used loose dirt, but, on the other hand, there was proof that in damp ditches, such as the one in question, the loose earth was as good or better than the sand. Other matters might be mentioned, but these suffice to illustrate the point.
"Defendants asked and received this instruction: `The court further instructs the jury that if you find and believe from the evidence that the best quality of 24-inch hard burned, salt glazed, vitrified clay pipe, laid in the manner prescribed in the contract between defendants Herman Ruecking and Frederick Eistrupp and the plaintiff, were insufficient, too weak or inadequate for the purposes for which the same were intended by the contract, and that the broken and cracked condition discovered by plaintiff or its agents on or about August 8, 1904, was due to the condition of said pipe so specified, and that said materials were furnished and the work done substantially as provided by
said contract, then your verdict must be for the defendants.' We have underscored the language to which plaintiff objects. Plaintiff asked a general instruction covering the case, which wound up by telling the jury that, if they should find the facts to be as rehearsed and set forth in such instructions, then they should find for plaintiff. To this instruction the court added the following clause: `Unless you find and believe from the evidence that, notwithstanding the neglect and omission of any of the requirements mentioned above, the defendants did said work in substantial and workmanlike manner in substantial conformity with the plans and specifications on file for the same.' It will thus be seen that the battle nisi was waged on the question as to whether or not `substantial performance' was a valid defense under a contract of this kind. The jury found...
