Dhrew v. City of Altoona
| Decision Date | 01 October 1888 |
| Docket Number | 59 |
| Citation | 121 Pa. 401,15 A. 636 |
| Parties | DRHEW & BELL v. ALTOONA CITY |
| Court | Pennsylvania Supreme Court |
Argued April 18, 1888
ERROR TO THE COURT OF COMMON PLEAS OF BLAIR COUNTY.
No. 59 July Term 1887, Sup. Ct.; court below, No. 48 January Term 1883, C.P.
On November 23, 1882, P. F. Drhew and G. T. Bell, trading as Drhew & Bell, brought an action of covenant against the city of Altoona. The plea was, covenants performed absque hoc, and payment.
At the trial on January 28, 1884, one of the plaintiff firm having died since the suit was brought, the material facts appearing were as follows:
On August 11, 1880, at a special meeting of city council, a resolution was passed that the committee on water pipe be and they were thereby instructed to purchase water pipe hydrants, and materials needed for the laying of the same, in such quantities and at such times as they might deem proper said purchase not to exceed in the aggregate the sum of $15,000. On October 2, 1880, an ordinance was enacted "authorizing a loan of $60,000, for the building of dams for water storage, and for the purchase and laying of water pipe" for the use of the city, and it was provided that all moneys derived from the sale of the bonds authorized should be used "for the building of reservoirs for the storage of water for the use of said city, and for the purchase and laying of water pipe through the city, and for that purpose only."
On August 3, 1881, the plaintiffs entered into a sealed contract with the city to furnish all the material and perform all the labor necessary to complete in the most substantial and workmanlike manner, to the satisfaction and acceptance of the engineer of said city, the reservoir and storage dam at Kittanning Point; the work to be finished as described in the specifications, made a part of the contract, and agreeably to the directions received from the engineer in charge, or his assistants, on or before August 31, 1882. Certain provisions of the contract were as here follow:
The quantities exhibited to the contractors at the time of soliciting proposals for the work herein contracted for are necessarily only approximate; they furnish only general information, and will in no way govern or affect the final estimate, which will be made out on the completion of the work from actual measurements and established facts not determinable at the time of letting the work.
On or about the last day of each month during the progress of this work, an estimate shall be made of the relative value of the work done, to be judged of by the engineer, and eighty-five per cent of the amount of said estimate shall be paid to the party of the first part on or about the first day of each month. And when all the work embraced in this contract is completed, agreeably to the specifications, and in accordance with the directions and to the satisfaction and acceptance of the engineer and city council, there shall be a final estimate made, of the quality, character and value of said work according to the terms of this agreement, when the balance appearing due to the said parties of the first part shall be paid to them within thirty days thereafter, upon etc. . . .
It is further agreed and understood, that the work embraced in this contract shall be commenced within five days from this date and prosecuted with such force as the engineer shall deem adequate to its completion within the time specified, and if at any time the said party of the first part shall refuse or neglect to prosecute the work with a force sufficient, in the opinion of the said engineer, for its completion within the time specified in this agreement, then, and in that case, the said engineer in charge, or such other agent as the engineer shall designate, may proceed to employ such a number of workmen, laborers and overseers as may, in the opinion of the said engineer, be necessary to insure the completion of the work within the time hereinbefore limited, at such wages as he may find it necessary or expedient to give; . . . . The engineer in charge shall have the right to cause the stoppage of the work at any time when in his opinion the best interests of the city shall require it, and the work shall not be recommenced without the permission of the engineer in charge. . . .
Also that any disagreement or difference between the city and the contractors upon any matter or thing arising from these specifications or the drawings to which they refer or to the contract for the work or the kind or the quality of the work required thereby, shall be decided by the engineer in charge, whose decision and interpretation of the same shall be considered final, conclusive and binding on all parties. . . .
Every part of the work is to be executed under the direction and subject to the approval of the engineer in charge, and it is understood that in all questions or matters relating either to the work or the contracts for the same, the decision of the engineer in charge shall be final and conclusive and without appeal.
And the said party of the second part doth promise and agree to pay to the said parties of the first part:
*2*per cubic yard
For paving in waste weir
per cubic yard
For cut stone masonry in pier
per cubic yard
For cut stone masonry in overflow
per cubic yard
For rock range masonry
per cubic yard
For rubble masonry
per cubic yard
For rip-rap
per cubic yard
1 25
*2*For hemlock plank per 1,000 in place
*2*For excavation of ditch from overflow, per cubic yard
40
*2*For building sewer per foot
*2*In witness whereof
Under said contract the work was begun and prosecuted for fifteen months, the contractors receiving monthly estimates, deducting the 15 per cent to be retained. The fifteenth estimate was made on November 1, 1882, and was as follows:
8,300 25
For 1640 cubic yards puddle, at $1.15
1,886 00
For 396 cubic yards cut masonry, at $10
3,960 00
For 1170 cubic yards rubble masonry, at $3.75
4,387 50
For 62,000 bricks laid at $16
992 00
For 7 lineal feet of sewer, at $5.75
For 606 cubic yards rip-rap, at $1.25
757 50
For 210 cubic yards broken stone, at $1
210 00
Total
$ 43,934 49
Less 15 per cent
6,590 17
$ 37,344 32
Less previous pay
32,670 63
Balance due
$ 4,673 69
For the amount of this balance an order was drawn in favor of the contractors upon the treasurer of the water fund and presented for payment on November 7th, following. The treasurer informed Mr. Drhew, who presented the order, that the water fund, which had originally been $60,000, was exhausted except the sum of $2,410. The order was then returned and three orders were given in place of it, one for $2,410, and two others, for $1,090 and $1,113.69, respectively. The first of these orders, that for $2,410, was paid, the others remained unpaid.
The contractors continued under the contract until November 8, 1882, when they stopped, disposed of their implements, horses and other property, and formally abandoned the work. The city engineer was then requested by the contractors to furnish a final statement showing the amount of work, etc., done, and the sum due the contractors to the time of their quitting work. This the engineer declined to do, and the contractors thereupon brought this suit. Subsequently, on December 15, 1882, the following final estimate was made by the engineer, including the work, etc., done to November 8th:
To DRHEW & BELL, Dr.
To 5,201.6 cubic yards solid rock excavation at 75c.
To 210.2 cubic yards broken stone at $1
210 20
Total
$ 41,237 22
Less orders granted
37,344 32
Balance
$ 3,892 90
The contentions of the parties appear in the charge of the court, DEAN, P.J., parts of which were as follows:
Up to this time [November 8, 1882] the plaintiff alleges, the contractors had faithfully kept the covenants on their part had prosecuted the work diligently and had done it well; and, while they had not finished it on or before August 31, 1882, as specified in the agreement, the plaintiff alleges this was owing to a large increase in the quantity of the work over that specified or intended at the time the...
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Drhew v. Altoona
...121 Pa. 401 ... DRHEW & BELL v. ALTOONA CITY ... Supreme Court of Pennsylvania ... Argued April 18, 1888 ... Decided October 1, 1888 ... Before GORDON, C. J., PAXSON, ... ...