English v. Shelby

• Decision Date: 04 January 1915
• Docket Number: 100
• Citation: 172 S.W. 817,116 Ark. 212
• Parties: ENGLISH v. SHELBY
• Court: Arkansas Supreme Court

172 S.W. 817

116 Ark. 212

ENGLISH v. SHELBY

No. 100

Supreme Court of Arkansas

January 4, 1915

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; reversed.

STATEMENT BY THE COURT.

Appellee Shelby entered into a contract, whereby he undertook to build a street according to plans and specifications furnished by the Board of Commissioners of Street Improvement District No 135 of the city of Little Rock, and its engineer, E. A Kingsley. This contract provided that the engineer appointed by the board should be arbitrator between the contracting parties, and should decide all disputes "involving the character of the work, the compensation to be made therefor or any other question arising under the contract;" and that the engineer should "have the option of making any changes in the line, grade, plan, form, position, dimensions or material for the work contemplated, either before or after construction is begun, and all other explanations or directions necessary for carrying out or completing satisfactorily the different descriptions of work contemplated and provided for in this contract and specifications."

The contract for the construction of the streets was dated June 9, 1909, and provided that the streets were "all to be built in a good, firm and substantial manner, as shown by plans and specifications prepared by E. A. Kingsley, engineer, and now on file in his office, said plans and specifications being hereby made a part of this contract the same as if copied herein at length; * * * the work to be done in every respect according to plans and specifications, and to be guaranteed by the party of the second part for a period of five (5) years; and the party of the second part hereby agrees that he will furnish a bond of good and sufficient security, to be approved by the party of the first part, for his due performance of this contract, such bond to be in the sum of one hundred thousand dollars ($ 100,000), and to be covenanted that party of the second part shall in all respects perform this contract.

"Party of the second part further undertakes and agrees that the plan of said work, the composition of the materials specified, and the character in which it will be done by him, are such that no repairs of any kind will be required on any portion of said street, or any of said work for a period of five (5) years from its completion. And it is hereby guaranteed that said street, when completed will remain in perfect repair for a period of five (5) years. If any repairs are needed from any cause during this period, they shall be done and paid for according to the provisions and specifications, and party of the second part agrees to furnish a good and sufficient bond, to the satisfaction of the party of the first part, on the condition that said street will remain in perfect repair for the said period of five (5) years."

The street was finished in accordance with the contract, and the work was approved by the engineer and accepted by the board, whereupon, in accordance with this original contract, appellee Shelby executed what was known as a "maintenance" bond, dated January 26, 1910. This maintenance bond contained the following guaranty.

"The work shall be done in such a substantial manner that no repairs will be required for a period of five (5) years. Should repairs become necessary, however, during any such period, then the contractor will be required to make good any damage to the work, or any defect in the workmanship, materials or condition of the work which may have occurred during said period, and which made such repairs necessary. The guarantee period shall date from the time of final acceptance of the work by the board. Said contract or shall keep said work in good repair during the time of the guarantee period, and shall make all repairs at such time as directed by the board or city engineer of the city of Little Rock. It shall be the duty of said contractor to notify the board, or, if it has turned the improvement over to the city of Little Rock, then to said city, in writing, at least thirty (30) days prior to the expiration of said guarantee period, to inspect the work, and unless the contractor shall furnish said notice, the obligation to maintain the said work in proper condition shall continue in force until such notice shall have been furnished, and for thirty (30) days thereafter, and until such time as the contractor shall place said work in proper condition, if notified to do so within the thirty (30) days' period. It is understood and agreed that this guarantee shall cover all repairs growing out of the imperfection or unsuitability of material or composition, all defects in workmanship, and shall cover all other excessive deterioration, more especially described, as follows: Any holes or cracks in the pavement, and any defects resulting from the deterioration of the wearing surface or foundation. The pavement, at the expiration of the guarantee period, shall be in good condition, present a surface so true and even that it will in no way be an obstruction to travel, and have a drainage so perfect that water may collect in no place to a depth of more than one-quarter of an inch. The determination of the necessity for repairs shall rest entirely with the board, or, after it has turned the street over to the city of Little Rock, with the city engineer of said city, whose decision upon the matter shall be final and obligatory upon the contractor; and the guarantee herein stipulated shall extend to the whole body of the improvement, and all its appurtenances, and the repairs required under it may extend to a total reconstruction of the whole body of the improvement, if, in the judgment of the board, or of such city engineer after the board has turned the street over to the city, such total reconstruction shall become necessary, by reason of any defects in the original materials or construction."

It is undisputed that repairs to the street became necessary, the cost of which was admitted to be $ 3,859.73, and the contractor was called upon to make them, and having declined to do so he was sued, together with his sureties, for the cost thereof.

Appellees contend that, under the terms of the maintenance bond, they were only bound to make repairs that were caused by the fault of the contractor in using defective material, or doing defective work, and that the bond was not liable for any repairs not due to those causes. The contractor further contended that, after the acceptance of the work, he had been required by the commissioners, to make certain repairs, and that he had done so under protest and at a cost to himself of $ 2,320, and he prayed judgment for this sum. The contractor further contended that the repairs which he made, as well as those he was called upon to make, were all rendered necessary by the defective foundation, and that this foundation was put in under the supervision and with the approval of the engineer...