O'Dea v. City of Winona

• Decision Date: 10 September 1889
• Citation: 41 Minn. 424,43 N.W. 97
• Parties: O'DEA v CITY OF WINONA.
• Court: Minnesota Supreme Court

41 Minn. 424

43 N.W. 97

O'DEAvCITY OF WINONA.

Supreme Court of Minnesota.

Sept. 10, 1889.

(Syllabus by the Court.)

1. The plaintiff entered into a contract with defendant to fill and grade one of its streets, and to build a low retaining wall upon each side of the fill or embankment in accordance with plans and specifications already prepared by the city engineer. The work was to be done at a certain price per cubic yard under the direction of the engineer, subject to his approval, to his satisfaction, and to the satisfaction of the city council. The grade line was laid down in the usual manner upon the engineer's plan or profile. It was conceded that at some time after bids were called for, and the acceptance of the one filed by the plaintiff, the council determined to have less work done than was provided for in the plans and specifications. But there was no record indicating when this decision was made, and none which clearly showed to what extent the contemplated improvement was curtailed, changed, or abandoned. In the record of the proceedings of the council meeting at which plaintiff's bid was accepted,-he being present,-appeared a statement as to what transpired, which tended to show these changes as then understood and agreed upon by the members of the council and the engineer, who was also present. Held, that the trial court did not err in receiving the record in evidence.

2. The engineer thereafter-it being necessary for him to do so-fixed the grade line upon the ground, laid out the work, and gave general directions to the plaintiff, but departed from the plans and specifications, principally as to the height of the fill or embankment. The plaintiff, in good faith, proceeded to complete the contract, as he supposed, under the constant supervision of the engineer, who finally estimated the amount and accepted the work. Held, that there was a practical construction of the contract which could not be ignored or disregarded by the courts.

3. When a party has substantially complied with the terms of a contract which he is to perform to the satisfaction or approval of the other party, whereby the property of the latter has been materially benefited, the improvements and benefits being of such a character that they must necessarily be appropriated and retained by the party for whom they are made, the contractor is entitled to recover upon his contract.

4. When a contract provides that the pay quantities of earth shall be computed from borrow pit and excavation measurements, it does not conclusively follow that the pits and excavations from which the earth is taken, must be measured.

5. From the testimony it appeared that such pay quantities are as accurately and as frequently ascertained by measuring the cubic yards in the fill or embankment, and deducting a well-established percentage for the known difference in the measurement of earth before and after removal; and it further appeared that this method was adopted by the city engineer when estimating the pay quantities in this case. Held, that it was not error to permit a recovery, upon showing the number of cubic yards of earth removed under this manner of measuring.

Appeal from district court, Winona county; START, Judge.

W. A. Finkelnburg and M. B. Webber, for appellant.

Gould & Snow, for respondent.

COLLINS, J.

The council of the defendant city, contemplating the grading and improvement of some two miles of one of its thoroughfares leading into the country, directed its engineer to prepare and submit a plan or profile of the proposed work, with proper specifications, on which bids might be solicited. This was done May 28, 1888, and the council then advertised for bids. The plaintiff was the lowest bidder, whereupon the matter was referred to a committee, who subsequently advised and reported that the proposed work should be lessened and curtailed. On June 25th, a resolution was adopted by the council, awarding to plaintiff the contract for the improvement of the street in question from one certain named point to another,-only a part of the distance covered by the plan and profile, the improvement of the balance having been abandoned, it seems. On July 7th, plaintiff and defendant entered into a contract for the work on that part of the street lying between the points named in the resolution, which was to be done in accordance with the plans and specifications above referred to, and to the satisfaction of the council and city engineer, at a certain price per cubic yard for each of two distinct classes of work. The specifications also provided that the work should be done subject to the approval of the city engineer, and under his direction. The plaintiff claims to have complied with the terms of his contract, which defendant denies. The motion for a new trial, made after plaintiff recovered a verdict in the court below, having been denied, the defendant appeals.

The defendant insists that the trial court erred in permitting the plaintiff to introduce testimony tending to show that at a council meeting on June 27th, when plaintiff's bid was accepted, there were inquiries made by members of the council, and answers by the city engineer in plaintiff's presence, which indicated that there had not only been a departure from the original plan of improvement as to its extent, but also as to its character; and that at some time subsequent to the presentation of the profile to the council, and the commencement of the work, the engineer directed and caused a new grade line to be laid down on the profile,-the principal result claimed from the alleged change being a reduction or lowering of the fill exactly two feet; that is, the top of the road-way would thereby be two feet lower, when completed, than as first designed. It is undisputed that before, or perhaps at the time, plaintiff's bid was accepted, the city council determined to abandon all improvement of a part of the street. Just when or how this conclusion was reached is not apparent from the testimony, the only record thereof or allusion thereto, so far as we have been able to discover, being in the resolution accepting the bid for a part of the work, and in the minutes of the meeting before referred to. And from these minutes, it might well be inferred that the changes intended by the plan to curtail the expense were much more radical than the single change in distance indicated by the resolution. The contract between the parties made, so far as applicable to the work to be done, the plans and specifications submitted on May 28th a part of it. By the specifications, the work was to be performed under the direction of the city engineer, and subject to his approval, while in the contract it was provided that it should...