J.A. Kreis & Co. v. City of Knoxville

• Decision Date: 08 December 1921
• Citation: 237 S.W. 55,145 Tenn. 297
• Parties: J. A. KREIS & CO. v. CITY OF KNOXVILLE.
• Court: Tennessee Supreme Court

237 S.W. 55

145 Tenn. 297

J. A. KREIS & CO. v. CITY OF KNOXVILLE.

Supreme Court of Tennessee.

December 8, 1921

Appeal from Chancery Court, Knox County; Charles Hays Brown Chancellor.

Suit by J. A. Kreis & Co. against the City of Knoxville. Decree for complainants, and defendant appeals. Reversed and bill dismissed.

HALL J.

On April 12, 1917, the city of Knoxville (a municipal corporation) contracted in writing with the complainants to construct or build for it a pump pit in which to install a pump and engine for use in connection with the city's waterworks system according to certain plans and specifications which had been prepared by its engineer prior to letting the contract, for a specified sum.

Complainants entered upon a performance of the contract, and after they had proceeded for some time with the work it was found that the pit, as originally planned, would not be sufficient to accommodate the pump and engine which the city had purchased and desired to install. It, therefore, became necessary to enlarge the pit, and complainants, by the verbal authority and direction of the city's commissioner of waterworks, and with assurance from said commissioner of waterworks that they would be paid for the additional and extra work necessary to enlarge the pit to the dimensions required, did additional or extra work in the construction of said pit of the value of $6,377.94, to collect which the present bill was filed by complainants.

The city demurred to the bill upon a number of grounds. Its demurrer was overruled, after which it answered, setting up a number of grounds of defense. One of the grounds of defense was that the contract for this additional or extra work was not made in writing, and that complainants, therefore, could not recover for the same. It is unnecessary to set out the other defenses made by the city in its answer.

The cause was heard by the chancellor upon the pleadings exhibits thereto, and certain proof taken by the complainants. The defendant offered no proof whatsoever.

The chancellor rendered a decree against the city and in favor of the complainants for $5,761.51, which sum he found the city had obligated itself to pay under a compromise agreement entered into by it with the complainants on September 9 1919. From this decree the city has appealed to this court, and has assigned the action of the chancellor for error.

There is no dispute as to the facts. The undisputed proof shows that complainants did this additional work on the pump pit with the verbal assurance of the city's commissioner of waterworks that the same would be paid for by the city, and that this additional work cost complainants $6,377.94 more than the city had paid them; that on September 9, 1919, after the present bill had been filed, the commissioners of the city of Knoxville, in regular meeting, ordered a compromise of complainants' claim against the city on account of said additional work, agreeing to pay complainants the sum of $5,761.51. The following entry appears on the minutes of the city commission:

"J. W. Culton appeared before the commission in regard to the compromising of the suit of J. A. Kreis & Company, now pending in the chancery court, for amounts due on completing the pumping station. On motion of Commissioner Crumbliss, Commissioner Hill voting No, the suit was ordered compromised for $5,761.51, Kreis paying all court costs."

Before this compromise agreement was executed, the board of commissioners, who entered into said agreement, went out of office and were succeeded by the present board of commissioners of the city of Knoxville, who, by resolution, undertook to rescind the action of the old board of commissioners in compromising the claim of complainants, and, payment of said claim in accordance with said compromise agreement being refused by the present commissioners, the present bill was filed, as before stated.

The original contract for the building of said pump pit contains the following provisions:

"Contractor agrees that the commissioners of waterworks shall have the right, when in their opinion it becomes necessary in the prosecution of the work, to make alterations or modifications in this contract, whereby the character as well as the quantities may be changed; but such alterations or modifications shall only be made by order of the commissioners of waterworks, and such order shall not go into effect until the price or prices to be paid for the work or materials under such altered or modified contract has been agreed upon in writing and signed by the contractor and the commissioners of waterworks; and said contractor shall not be allowed to recover anything for work or materials caused by any alterations or modifications in this contract, unless an order is made and agreement signed as aforesaid; nor shall said contractor in any case be allowed to recover more for such work and materials than said agreed price or prices; provided, that this condition shall not apply to any item for which a price has been written in the proposal."

Section 46 of the charter of the city of Knoxville (chapter 207, Acts of 1907) provides as follows:

"Be it further enacted, that when, in the opinion of the board of public works, it shall become necessary in the prosecution of any work to make alterations or modifications in the specification or plans of a contract, such alterations or modifications shall be of no effect until the price to be

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