Douglass & Varnum v. Village of Morrisville

• Decision Date: 26 October 1915
• Citation: 95 A. 810,89 Vt. 393
• Parties: DOUGLASS & VARNUM v. VILLAGE OF MORRISVILLE
• Court: Vermont Supreme Court

95 A. 810

89 Vt. 393

DOUGLASS & VARNUM v. VILLAGE OF MORRISVILLE

Supreme Court of Vermont

October 26, 1915

November Term, 1913.

ASSUMPSIT for labor done and materials furnished in the construction of a concrete dam with its appurtenant steel penstock. Plea, the general issue with notice. Trial by jury at the June Term, 1911, Lamoille County, Miles, J presiding. Verdict and judgment for the plaintiffs. Defendant excepted. The opinion fully states the case. The diagrams referred to in the opinion are shown on the following page.

Judgment affirmed. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

J. W. Redmond and F. G. Fleetwood for the defendant.

Present: MUNSON, WATSON, HASELTON, AND TAYLOR, JJ., AND WATERMAN, SUPERIOR J.

OPINION

WATSON

The case was tried on the second, third, and fourth counts of the amended declaration, being two special counts and the general count in assumpsit. These counts were held sufficient (on demurrer) when the case was here before. 84 Vt. 302, 79 A. 391. Plea, general issue, and notice (1) of payment, and (2) that the excavation and filling of the fissure mentioned in the declaration, and all the work, and material therein contained and made, were in fulfillment of the written contract between the plaintiffs and the defendant, dated July 2, 1906, and the plans and specifications therein referred to; that the plaintiffs have failed to fulfill said written contract, and recoupment. A trial by jury was had, resulting in a verdict for the plaintiffs; judgment was rendered on verdict; and the case is here on defendant's exceptions.

For the purpose of showing the evidence, the tendency thereof, the objections and motions made during the trial, the grounds upon which the same were based, the rulings thereon and the exceptions taken thereto, a duly certified transcript of the whole case is referred to and made a part of the exceptions and is to control. The exhibits and the charge of the court are also referred to, made a part of the exceptions, and are to control.

It appeared that on July 2, 1906, the village of Morrisville, by its water and light commissioners, entered into a written contract with the plaintiffs, Douglass & Varnum, containing provisions material to be noticed, as follows:

"The said Douglass & Varnum agree to construct a concrete masonry dam and steel penstock and to furnish all labor and material and perform all work called for in specifications hereto attached and in plans used in connection therewith, for the improvement of the electric light and power plant for the village of Morrisville at Cadys Falls, in the town of Morristown, Vermont, for the price of fifty thousand, seven hundred and twenty-seven dollars and eighty cents ($ 50,727.80).

"Said work shall be undertaken and performed under all the terms and conditions of the specifications hereto attached, with the following exceptions:

"The work shall be performed according to the plans and drawings prepared by H. M. McIntosh, which plans and drawings are made a part of this contract, except that such part of the dam as is west of the spillway shall be built to an elevation of 106.35 instead of 108.35 as shown on said plans.

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"If any change is made in the plans and specifications by the village of Morrisville whereby the construction, work or materials is (are) less than that specified in the specifications. Douglass & Varnum shall allow the said village therefor, and the amount of such allowance shall be based upon the bid for such work filed with the water and light commissioners of Morrisville by Douglass & Varnum.

"The presence of the inspector, or the approval of any work covered by the specifications hereto attached by such inspector, shall not relieve Douglass & Varnum from liability for faulty construction or for any work improperly or negligently performed."

Of the provisions contained in the specifications, particular notice need be had only to the following:

"The work called for under these specifications consists of all earth and rock excavation, backfill and grading, concrete masonry, iron work, steel work, wood work, and all other work that may be required for the entire completion of the dam, forebay, wing walls and retaining walls and penstock, piers, flood and waste gates, gate hoists, rack, penstock, vent stack and of connecting the new penstock with the present penstock near the power house. All work to be performed in accordance with these specifications and with plans furnished and to be furnished by the water and light commissioners of the village of Morrisville, Vt., and in accordance with the directions of and to the entire satisfaction and acceptance of the said water and light commissioners or their representatives.

"In these specifications, the term owner refers to the village of Morrisville by its authorized representatives, the water and light commissioners. The term contractor refers to the contractor for the work called for under the specifications, and the term inspector refers to the inspector in charge of the work, appointed by the water and light commissioners of Morrisville, Vermont.

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"Contractors submitting bids or tenders on this work are expected to compare plans and specifications with the site and no demands or allowances shall be made on account of any misunderstanding of the plans and specifications.

"No estimates of quantities will be furnished by the owners, but the contractor must examine the plans and specifications, comparing them with the site, and the lump sum bid must cover the total expense of securing a proper foundation and building the work specified to lines and levels and in the manner called for in the plans and specifications.

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"The contractor shall keep employed at all times on the work a competent English speaking foreman, foremen, and any directions given by the owner, or inspector, to any foreman who appears to be in charge of the work, shall be valid and binding upon the contractor the same as if given to him in person.

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"The contractor shall give all necessary assistance at all times for the proper inspection of the work by the owner or inspector.

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"So long as the work herein contracted for is prosecuted agreeably to the provisions of the contract and with such progress as may be satisfactory to the owners, the owners by their representatives will, on or about the first day of each month, make an approximate estimate of the proportionate value of the work done thereon and of the material furnished, delivered to and accepted by the owners on their property at the site of the works and the amount of said estimate less 15% and all previous payments, shall be due and payable to the contractor at the office of the water and light commissioners on or before the 12th day of the current month.

"Upon the completion of the work to the satisfaction and acceptance of the owners, a final estimate of the total amount of contract and all extra work performed by the contractor by order of the owners shall be made, and this total sum, less all previous payments, shall be paid to the contractor within thirty days of date of said final estimate.

"Excavation will include all grubbing, clearing, earth and rock excavation necessary for a proper foundation for the penstock to be placed to grade and lines shown on plans, the removal of all earth and rock and a sufficient amount to secure two trenches in solid rock as shown on drawing for foundation for the dam, and to secure a foundation for flume and flood gates and clear approaches to same to a level as shown on plans.

"The rock at the east end of the dam shall be removed to a point to secure a shoulder of at least two feet in solid rock.

"Excavated material not used in the construction of the dam shall be placed around and over the penstock, thoroughly tamped and puddled to be placed there after the tube is tested under full head of water.

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"Any work which may be found necessary to perform that is not covered by this specification and the contract, must be covered by an order in writing by the owners or their representatives and will be paid for at actual cost, plus 10%.

"No allowance or payment will be made for any work performed, or material furnished, not covered by the contract or such order."

The water and light commissioners mentioned in the contract (including the specifications) are hereinafter designated as commissioners, and generally the village of Morrisville, as the village.

The written contract was introduced in evidence and marked plaintiffs' Exhibit A, and the same is hereinafter referred to as exhibit A. Blue print copies of the plans and drawings prepared by H. M. McIntosh and referred to in the contract and made a part thereof, were introduced in evidence and marked plaintiffs' exhibit B, and the same is hereinafter referred to as exhibit B. This exhibit comprises four pages, or sheets, of plans and drawings bound together, and are the plans and drawings received by the contractors.

It appeared that said McIntosh was defendant's consulting engineer during all the time material here, and is the "engineer" referred to in exhibit A; that he secured the data for and made exhibit B; that Calvin A Slayton was the "inspector" referred to in exhibit A, as "the inspector in charge of the work, appointed by the water and light commissioners of Morrisville,"--It further appeared that Slayton held no office under the village, and had no authority from it or from the commissioners, except what was conferred upon him by the provisions of exhibit...