First Nat. Bank v. City of Seattle

• Decision Date: 20 November 1912
• Citation: 127 P. 837,71 Wash. 122
• Parties: FIRST NAT. BANK v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

127 P. 837

71 Wash. 122

FIRST NAT. BANK v. CITY OF SEATTLE et al.

Supreme Court of Washington

November 20, 1912

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by the First National Bank against the City of Seattle and another. From a judgment for defendants, plaintiff appeals. Affirmed.

James Kiefer, of Seattle, for appellant.

John W Roberts, of Seattle, for respondents.

MORRIS J.

In June, 1909, the city of Seattle awarded a contract to Paul Steenstrup, assignee of appellant, for the construction of the north trunk sewer outfall. The work to be done under this contract consisted in the extension of the sewer to deep water, a distance of about 750 feet. The general plan called for the laying of large concrete sewer pipe, the construction of a manhole, and beyond that a line of 48-inch cast-iron pipe, and at the outer end of the pipe a large elbow. The total length of cast-iron pipe to be laid under the contract was 414 feet, of which Steenstrup had laid about 174 feet when he was notified that the city would not accept his work, and that the pipe beyond a designated point would have to be taken up and relaid. Soon thereafter work was suspended. The work was resumed the following June, and the grade changing from a 6 per cent. to a 6.6 per cent. grade for one-third of the distance, and an 8.5 per cent. grade for the remaining distance. The first contention of appellant, as assignee of Steenstrup, grows out of this change of grade; it being contended that such change called for additional dredging which should be allowed as an extra, together with the cost of taking up and relaying the pipe. The lower court was of the opinion that the taking up and relaying of the pipe was not occasioned by the change of grade, but because of Steenstrup's failure to comply with the requirements of his contract. It is clearly apparent from the record that the lower court must be sustained in so holding. The nocessity for relaying the pipe was because they were out of alignment, caused by pumping the dirt from underneath the pipes in attempting to calk the joints with lead wool. This pumping materially destroyed the level of the pipe, and, as they went further out, they settled more and more out of line, until in some instances they were more than three feet out of alignment. The contract provided that the pipe should be laid to a true line and grade by such means as the contractor might devise. It was therefore incumbent upon Steenstrup to so lay his pipe as to preserve a uniform grade and alignment. When he failed solely because of the adoption of improper methods in laying his pipe, the city had a right to insist upon the pipe being taken up and relaid upon a true line. The change of grade from 6 per cent. to 6.6 per cent. and greater was in no wise responsible for this additional work. It was a very immaterial matter to the city what the grade was, so long as it preserved a true line and perfect alignment. The matter of grades is manifestly important in constructing a sewer in the ordinary street, where the flow depends upon the grade; but in this instance the flow was in no wise dependent on the grade, but on the elevation of the water at the point of discharge. At this point the outlet of the sewer was 45 feet under water at high tide and 28 feet under water at low tide. The flow of water through the pipes would therefore be conditioned, not by the grade, but by the elevation of the water or condition of the tide into which it discharged; the flow increasing as the tide dropped, and retiring as the tide rose. Steenstrup himself understood this, for the record establishes the fact that the change of grade was made at his suggestion and that of his subcontractor, because they evidently assumed by so doing they would be able to lay the pipe on a better foundation, and make it easier to preserve the alignment in the plan they adopted of beginning at the outer end and first setting the elbow, and, after it had become firmly imbedded and its elevation determined, they could then determine the necessary and proper grade to connect with the shore elevation. It also appears from the testimony of the city engineer that the actual amount of dredging was less than the amount indicated by the plans, because as actually laid the pipe is not as deep as shown on the plans. We are therefore of the opinion that the change of grade, whether for the city's benefit or the contractor's, did not call for the doing of extra dredging not shown on the plan under which Steenstrup submitted his bid.

As further confirming the city's contention that Steenstrup did not at the time regard the relaying of this 48-inch pipe as an extra, and that the altered grade line was made with...