Long v. Owen

• Decision Date: 27 January 1912
• Citation: Long v. Owen, 21 Idaho 243, 121 P. 99 (Idaho 1912)
• Parties: WESLEY LONG, Respondent, v. GEORGE OWEN, Appellant
• Court: Idaho Supreme Court

121 P. 99

21 Idaho 243

WESLEY LONG, Respondent, v. GEORGE OWEN, Appellant

Supreme Court of Idaho

January 27, 1912

ACTION ON CONTRACT-COMPLIANCE WITH CONTRACT-COMPLIANCE WITH TERMS OF CITY ORDINANCE.

(Syllabus by the court.)

1. Where one contracts to do a piece of work and there is at the time an existing law prescribing the specifications for that kind of work and requiring that all such work be done in accordance with the statute or ordinance then in force, such statute or ordinance becomes a part of the contract unless stipulated to the contrary, and the one who undertakes to do such work impliedly agrees to so perform the work as to meet the requirements of the law.

2. Where a contractor undertakes to build a sidewalk for a property owner in an incorporated city, town or village, he impliedly agrees to use such material as is required by the ordinance of the city wherein the walk is to be built, and that he will construct the same in accordance with the specifications of such ordinance.

3. Evidence examined in this case and held insufficient to support the verdict and judgment.

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.

Action for debt. Judgment for plaintiff. Defendant appealed. Reversed.

Reversed and remanded with directions. Costs awarded in favor of appellant.

Hawley Puckett & Hawley, for Appellant.

If respondent was to construct the sidewalk and curb according to specifications and ordinances, then the production of a certificate of approval by the city was a condition precedent to a right of action on the contract or agreement. (Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Cox v. McLaughlin, 63 Cal. 196; Tally v Parsons, 131 Cal. 516, 63 P. 833; Kihlberg v. United States, 97 U.S. 398, 24 L.Ed. 1106; Wangler v. Swift, 90 N.Y. 38; 9 Cyc. 618.)

Feltham & Ryan, for Respondent.

Where there is a substantial conflict in the evidence, the verdict of the jury and the judgment of the court will not be reversed. (Kendrick State Bank v. Northern P. Ry Co., 10 Idaho 483, 79 P. 457; Spencer v. Morgan, 10 Idaho 542, 79 P. 459; Watson v. Molden, 10 Idaho 570, 79 P. 503; Cash Hardware Co. v. Sweeney, 9 Idaho 148, 72 P. 826; Sears v. Flodstrom, 5 Idaho 314, 49 P. 11.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This action was instituted to collect the contract price for the building of two pieces of concrete sidewalk in the city of Weiser. At the time the work was done there was in force in the city of Weiser an ordinance which prescribed the kind of material and the composition thereof that should be used in the construction of sidewalks, and also prescribed in detail the manner of construction, giving the specifications necessary to be observed in the construction of such walks. The contractor, who is respondent herein, after completing the work, was unable to procure a certificate from the city engineer or the city council to the effect that the walk had been satisfactorily constructed in compliance with the requirements of the city ordinance. The appellant refused to pay until such certificate was produced. This action was thereupon instituted, and the respondent contended in the trial court that he had in fact constructed the walk in substantial compliance with the requirements of the ordinance, and the jury rendered a verdict in his favor for the contract price.

The contract was oral, and there is a dispute between the parties as to one of the stipulations of the contract. The appellant contends that respondent agreed to build a walk in compliance with the requirements of the city ordinance, and in such manner that it would be accepted by the city authorities. Respondent denies that anything was said about compliance with the city ordinance. As we view the matter, this conflict in the evidence is immaterial. Even if nothing was said whatever about the work being done in compliance with the city ordinance, that fact would be implied and the contractor would be obliged to do his work in substantial compliance with the ordinance before he would be entitled to recover the contract price. Where one contracts to do a piece of work and there is at the time an existing law prescribing the specifications for that kind of work and requiring that all such work be done in accordance with the statute or ordinance, as the case may be, the statute or ordinance becomes a part of the contract, and the one who undertakes to do such work impliedly agrees to do it in...