District of Columbia v. Clephane

• Decision Date: 21 January 1884
• Citation: 28 L.Ed. 122,110 U.S. 212,3 S.Ct. 568
• Parties: DISTRICT OF COLUMBIA v. CLEPHANE
• Court: U.S. Supreme Court

110 U.S. 212

3 S.Ct. 568

28 L.Ed. 122

DISTRICT OF COLUMBIA v. CLEPHANE.

January 21, 1884.

A. G. Riddle, for plaintiff in error.

Wm. F. Mattingly, C. C. Cole, and Wm. A. Cook, for defendant in error.

MILLER, J.

The defendant in error made a contract in writing with the board of public works of the District of Columbia in 1872 for the paving of parts of certain streets in the city of Washington with the 'Miller wood pavement.' In that contract there was the following clause, on which this action is founded, on account of its alleged violation by the defendant:

'Ninth. It is further agreed that if at any time during the period of three years from the completion of the work to be done under this contract any part or parts thereof shall become defective from imperfect or improper material or construction, and in the opinion of the said party of the first part require repair, the said party of the second part will, on being notified thereof, immediately commence and complete the same to the satisfaction of the said party of the first part; and in case of a failure or neglect of the said party so to do, the same shall be done under the directions and orders of the said party of the first part at the cost and expense of the said party of the second part.'

The plaintiff alleges that the defendant did not in good, sufficient, and workmanlike manner, nor in accordance with the specifications of the contract, execute the work therein mentioned, and that within three years from its completion a large part o it became defective from imperfect and improper material and construction. It is further alleged that defendant was duly notified of this, and required to repair it, which he failed to do, whereupon plaintiff did so, at an expense of $40,517, for which judgment is asked against defendant. The answer is a substantial denial of these allegations, with some special matter in defense not material to be noticed here. On the trial before a jury, after all the plaintiff's evidence was in, the defendant demurred to it as insufficient, and the court directed the jury to find a verdict for the defendant. It appears from the bill of exceptions, which contained all the evidence offered, that within the three years after the completion of the work the pavement became so badly broken up and so imperfect as to require extensive repairs, and demand was made on defendant to repair it; that on his failure to do so the officers of the district who had charge of the matter determined to remove the wooden pavement on several squares of the streets and replace it with another kind...