Friederick v. County of Redwood
| Decision Date | 01 December 1922 |
| Docket Number | 22,983 |
| Parties | T. J. FRIEDERICK AND ANOTHER v. COUNTY OF REDWOOD, ETC |
| Court | Minnesota Supreme Court |
After the former appeal reported in 148 Minn. 181, 181 N.W. 324 182 N.W. 514, the case was tried before Olsen, J., who at the close of the testimony denied the motion of both parties for directed verdicts, and a jury which returned a verdict in favor of defendant. From the judgment entered pursuant to the verdict, plaintiffs appealed. Reversed.
Liability of ditch contractor construed.
1. Where a contractor makes an absolute and unqualified contract to perform a given undertaking, he assumes the risks attending the performance of the contract and must repair any defect which develops before the completion of the work, but where he contracts to perform a given undertaking according to prescribed plans and specifications, he fulfils his engagement by doing the prescribed work in the proscribed manner, and is not responsible for defects, unless due to some fault on his part.
When contractor is not responsible for removal of earth after completion.
2. Where a contractor constructs a ditch according to the plans and specifications therefor, he is not required to remove earth and silt washed into it after it was constructed unless there be a provision in the contract to that effect.
Former appeal law of the case.
3. The amount per cubic yard to which plaintiffs were entitled for constructing the ditch was determined on the former appeal and the present record furnishes no ground for changing it.
Axel A. Eberhart, for appellants.
Albert H. Enersen, for respondent.
Plaintiffs brought this action to recover a balance claimed to be due under a contract to construct section 1 of County Ditch No. 22 in Redwood county. This section comprised the open portion of the ditch and was 39,700 feet in length. The case was before this court on a prior appeal and is reported in 148 Minn. 181, 181 N.W. 324, 182 N.W. 514, where a statement of the facts will be found. The second trial resulted in a judgment for defendant and plaintiffs appealed.
At the second trial there was little, if any, dispute as to the material facts. The contract was made in March, 1917. Several miles of the upper part of the ditch was constructed that year and the remainder was constructed the following year. In the summer of 1918, heavy rains occurred which washed large quantities of earth and silt into the upper part of that portion of the ditch constructed in 1917. The court submitted the case to the jury on the theory that the failure of the plaintiffs to remove this earth and silt from the ditch before tendering it for acceptance precluded them from recovering, and plaintiffs' exception to the charge to that effect raises the important question presented.
Where a contractor makes an absolute and unqualified contract to construct a building or perform a given undertaking, it is the general, and perhaps universal, rule that he assumes the risks attending the performance of the contract, and must repair and make good any injury or defect which occurs or develops before the completed work has been delivered to the other party. But where he makes a contract to perform a given undertaking in accordance with prescribed plans and specifications, this rule does not apply. Under such a contract he is not permitted to vary from the prescribed plans and specifications even if he deems them improper and insufficient; and therefore cannot be held to guarantee that work performed as required by them will be free from defects, or withstand the action of the elements, or accomplish the purpose intended. Where the contract specifies what he is to do and the manner and method of doing it, and he does the work specified in the manner specified, his engagement is fulfilled, and he remains liable only for defects resulting from improper workmanship or other fault on his part, unless there be a provision in the contract imposing some other or further obligation. Filbert v. Philadelphia, 181 Pa. St. 530, 37 A. 545; MacKnight Flintic Stone Co. v. Mayor, 160 N.Y. 72, 54 N.E. 661; Schliess v. City of Grand Rapids, 131 Mich. 52, 90 N.W. 700; Lamson v. City of Marshall, 133 Mich. 250, 95 N.W. 78; Bentley v. State, 73 Wis. 416, 41 N.W. 338; McConnell v. Corona City Water Co. 149 Cal. 60, 85 P. 929, 8 L.R.A. (N.S.) 1171; Holland v. Union Co. 68 Iowa 56, 25 N.W. 927; Board of Commrs. v. O'Connor, 137 Ind. 622, 35 N.E. 1006, 37 N.E. 16; Roberts v. Sinnott, 55 Mont. 369, 177 P. 252; Adams v. Tri-State Amusement Co. 124 Va. 473, 98 S.E. 647; Novelty Mill Co. v. Heinzerling, 39 Wash. 244, 81 P. 742; Biegert v. Village of Maynard, 122 Minn. 126, 142 N.W. 20; St. Anthony Falls Water Power Co. v. Eastman, 20 Minn. 249 (277); Breen v. Cameron, 132 Minn. 357, 157 N.W. 500; Middelstadt v. Kostendick, 144 Minn. 319, 175 N.W. 553.
The engineer appointed by defendant as provided by statute made the survey and report on which the ditch was established,...
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