Lamson v. City of Marshall

• Decision Date: 29 May 1903
• Citation: 95 N.W. 78,133 Mich. 250
• Court: Michigan Supreme Court
• Parties: LAMSON et al. v. CITY OF MARSHALL.

95 N.W. 78

133 Mich. 250

LAMSON et al. v. CITY OF MARSHALL.

Supreme Court of Michigan

May 29, 1903

Error to Circuit Court, Calhoun County; Clement Smith, Judge.

Action by Daniel A. Lamson and another against the city of Marshall. Judgment for plaintiffs. Defendant brings error. Reversed.

John E. Foley (James M. Powers, of counsel), for appellant.

Herbert E. Winsor (Weadock & Purcell, of counsel), for appellees.

CARPENTER J.

The plaintiffs recovered judgment in the court below for $4,,271.75, an unpaid balance claimed to be due them for the construction of a sewer system for the defendant corporation. Defendant insists that the court below should have directed a verdict in its favor, because: First, before suit was commenced plaintiffs assigned their entire claim against defendants to the Commercial Savings Bank; second, plaintiffs never obtained a certificate showing the completion of the work and the satisfaction of all claims for labor and material, which, by the contract, was a condition precedent to the right to maintain this action. Defendant also claims that the court below erred in not instructing the jury that it was entitled to stipulated damages for delay in construction, and in permitting plaintiffs to recover for 800 feet of rock excavation in excess of the allowance of the engineer. There are numerous other assignments of error, which will be sufficiently considered in discussing the foregoing assignments.

1. Assignment to the Bank. It appears that an assignment was executed by plaintiffs of 'all moneys due and coming due' 'for construction work on sewer' to the Commercial Savings Bank of Marshall. This was given to secure an indebtedness of $2,500, still unpaid at the time of the trial. Claim is made by the defendant that this assignment prevented a recovery in the name of the plaintiffs. Defendant contends that, though the plaintiffs presented this claim to the defendant's council, the failure of the Commercial Savings Bank also to present it affords a defense to the suit, because section 5 of chapter 17 of the charter of the city of Marshall forbids suits 'against said city, on any account or claim, until the same shall have been presented to said council.' We do not think this contention sound. It appears that the suit, though prosecuted in plaintiffs' name, was carried on with the knowledge and without the objection of the bank. The judgment in this case will therefore, be conclusive upon the bank. The presentation of the claim by the plaintiffs complied with the charter provision above quoted.

2. Can this suit be maintained without the engineer's certificate that the contract was completed and the material and labor paid for? On the completion of the work in July 1900, it was found that a section of the sewer, 1,080 feet in length, under Spruce street, which affected about one-third of the sewer system of the city, was defective. Because of this defect the engineer refused to give his certificate, and directed plaintiffs to relay this sewer. To relay it would have cost more than the balance claimed due on the contract. The contract contained this provision 'On all work provided for in this contract being completed in accordance with said contract, and to the satisfaction of the engineer, and on its being tested in such manner as shall, in the opinion of the engineer, be sufficient, and a certificate made by the engineer setting forth the amount of said work, and that said work has been completed, and that all claims for labor and material have been satisfied, the party of the first part agrees to pay to said parties of the second part the amount shown to be due to said second parties by said certificate of said engineer.' Plaintiffs contend that the defective condition of the sewer is due to a method of construction adopted by defendant's engineer, and therefore that under decisions of this court hereinafter referred to, said engineer has no right to reject said sewer, or to withhold his certificate, because of its defective condition. The evidence of the plaintiffs tended to prove that late in the year 1899 they encountered a large body of running water while constructing the sewer in question; that this water came into the sewer in such quantities that it could be removed in no practicable way; that the engineer's assistant, in charge of the work, stopped the laying of the sewer until the engineer, who was at that time in Toledo, should determine what to do; that on his arrival the engineer directed said plaintiffs to put a roll of cement as well as a roll of oakum around the joints, and then to proceed to lay the pipes in the running water; that, acting under these orders, and under the immediate supervision of the engineer or his assistant, plaintiff's laid about 300 feet of said pipe; that in May, 1900, in this same sewer, they were troubled in a similar manner with water; that at that time, acting under the direction of the engineer, they obtained a steam pump, and lowered the water, though they did not entirely remove it, and by his orders again laid pipe in the sewer while water was running therein, in the same manner as that adopted in the preceding year; and that as fast as the pipe was laid they covered it up, as they were required by their contract to do. The evidence tends strongly to prove that the defect in this sewer is due to the fact that the manner in which it was constructed did not exclude the water in which it was laid from entering the joints between the pipes. Defendant's testimony affirmed, and plaintiff's denied, that the engineer consented to the methods chosen on the condition that plaintiffs should make a sewer with absolutely tight joints. In Wildey v. School District, 25 Mich., at page 424, Mr. Justice Cooley said: 'Whatever passed under his [the superintendent's] inspection as the work progressed, and was in good faith approved by him expressly or by implication, was not open to objection on the part of the defendant afterward; and as to so much of the work, at least, the plaintiff had the right to recover that he would have had if the proper certificate had been furnished him. For it could never be held to be the intention of the parties, by any such words as are contained in this contract, to give the superintendent power to re-examine his own conclusions after the builder had, as he supposed, completed the work, and then to refuse a certificate, and preclude the builder from recovering payment except upon condition of making changes and modifications in particulars which had his approval, or, being fully known to him, were not objected to when the work was being done. An express agreement to give him this power would be so one-sided that it is not for a moment to be supposed the builder would enter into it. This contract contemplated the production of the certificate as the evidence of the contractor's right to his pay; but it might be waived, as it was in this case to the extent that payments were made; and the plaintiff was entitled to it as of right, as to any further work which he had done with the superintendent's approval, up to the 85 per cent. to be covered by the monthly estimates, and to the full amount if the work was completed under his direction. 'If there were intentional departures from the contract, either as to materials or as to the mode of construction, with the approval or concurrence of the superintendent, a question might arise whether the contractor was entitled to greater or less compensation than if the contract had been strictly complied with. But this record does not raise that question. Variances that may have been treated by both parties as immaterial at the time should not afterwards be held to be departures from the contract, and what was then regarded as substantial compliance with its terms should be held a performance in law.' In the case of Schliess v. City of Grand Rapids (decided by this court on June 9, 1902) and reported in 90 N.W. 700, it was said (page 704): 'The law would not permit defendant to see this work go on--to ratify it day after day and week after week--to see plaintiff putting in stone not in exact accord with the contract, and then say when the work is done, 'you have not complied with the contract.' Its time to accept or reject was when the work was being done. It could not lull the plaintiff into the belief that this work was satisfactory, and, when completed, reject it.'

Defendant contends that the principles announced in the foregoing cases do not apply to this case, on account of the provisions in the contract under which the sewer was constructed, and on account of the circumstances attending the building of the defective sewer. The provisions of the contract touching this question are as follows: Plaintiffs were to 'excavate for building and complete good, firm, and substantial sewers according to the map of route on file in the recorder's office, including sewer pipe, iron pipe, cement, suitable packing, house connections, manholes, lampholes, outlet masonry, * * * and all other material and appurtenances necessary to construct a proper and complete sewer, of the dimensions set forth in the schedule hereunto annexed, in the manner and under the conditions hereinafter specified.' 'Sewer trenches must be kept clean and free from water by the use of a pump, pail, or sponge during the process of the work, as no pipe shall be laid in the water.' 'All pipes must be kept thoroughly clean, and no water will be allowed to run through them during the construction of the sewer, unless with the permission of the engineer.' 'Although the engineer may assent to special means of prosecuting work in difficult cases, this will not relieve the contractor of the responsibility of the result.' 'The contractor shall...