R.F. Conway Co. v. City of Chicago

• Decision Date: 11 October 1916
• Docket Number: No. 10608.,10608.
• Citation: 113 N.E. 703,274 Ill. 369
• Parties: R. F. CONWAY CO. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

274 Ill. 369

113 N.E. 703

R. F. CONWAY CO.

v.CITY OF CHICAGO et al.

No. 10608.

Supreme Court of Illinois.

June 22, 1916.

Rehearing Denied Oct. 11, 1916.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Jesse A. Baldwin, Judge.

Bill by the R. F. Conway Company against the City of Chicago and others. There was decree in the Circuit Court dismissing the bill for want of equity, which was affirmed by the Appellate Court, and, certificate of importance being granted, the plaintiff appeals. Judgment of the Appellate Court (195 Ill. App. 313) and decree of the circuit court reversed, and cause remanded to the circuit court for further proceedings in harmony with the opinion.

Tolman & Redfield and Henry Porter Chandler, all of Chicago, for appellant.

Harry F. Atwood and Joseph F. Grossman, both of Chicago (Samuel A. Ettelson, Corp. Counsel, of Chicago, of counsel), for appellees.

DUNN, J.

This was a bill in equity filed in the circuit court of Cook county by appellant against the city of Chicago and the Chicago Railways Company, involving the question of appellant's liability for the cost of repairing a portion of the roadway of Lincoln avenue, which had been paved by appellant under a contract with the city. The trial court entered a decree dismissing the bill for want of equity. That decree was affirmed by the Appellate Court. A certificate of importance being granted, the case has been brought here on appeal.

The city of Chicago on May 20, 1907, entered into a contract with appellant for the paving of the roadway of Lincoln avenue from Wrightwood avenue of North Western avenue, in said city. Under the ordinance providing for such improvement the contract provided for filling, grading, and paving with creosoted wood blocks upon a sand cushion and concrete base, all the roadway except 16 feet in the center, which was to be paved by the street railway company. In compliance with the ordinance a special assessment to defray the cost of the improvement was levied and confirmed. The city advertised for bids, and appellant, being the lowest bidder, was awarded the contract. The contract provides, among other things, as follows:

‘That the material furnished and used and the workmanship employed in the construction of the said improvement shall be of such character and quality as to insure the same to be free from all defects and in continuous good order and condition, satisfactory to the board of local improvements, for a period ending five (5) years from and after the 1st day of December next following the completion and acceptance of the same; and, as a guaranty of the faithful performance of these specifications, the quality of the materials furnished, and the proper construction of said improvement, the contractor hereby agrees to keep and maintain said improvement, without additional charge or cost to the city of Chicago, in such order and condition as will be satisfactory to the board of local improvements, for the period ending five (5) years from and after the 1st day of December next following the completion and acceptance of the same, which keeping and maintaining shall include repairs or the entire reconstruction of the same. * * * That, in order to enforce the faithful performance of the terms and conditions of said above agreement on the part of the contractor to keep, maintain, and repair said improvement, the city of Chicago * * * may, upon the completion of said work, retain five (5) per cent. of the cost of the total work performed by the contractor, on the following terms and conditions: If the contractor shall fail, neglect, or refuse to repair, keep, and maintain said improvement in good order and condition in accordance with this contract and specifications,’ than the city of Chicago, after giving ten days' notice, may make such repairs and pay the cost thereof out of said 5 per cent.

The contract further provides that:

This 5 per cent. ‘shall be deemed only as security additional to the bond of the contractor executed to secure the performance by the contractor of this agreement. * * * All material to be incorporated in the work, all labor performed, and all appliances, tools, and methods used shall be subject to the inspection and approvalor rejection of said board of local improvements, and the said board of local improvements reserves the right to finally decide all questions arising as to the proper performance of said work.’

The ordinance and contract provide that for the roadway there should be a six-inch foundation of concrete, upon which should be spread a layer of sand one inch thick, and upon the sand cushion should be placed the creosoted wooden blocks. The plans for the improvement were designed and the specifications prepared by the engineers of the city of Chicago, and the work was done under the supervision of the city officers.

The pavement was commenced in the fall of 1907, and completed in the three years following. While it was being constructed the street railway company laid a new track on Lincoln avenue, the railway gang going ahead of the construction gangs of appellant on this portion of the work. When the pavement was completed the board of local improvements filed in the county court of Cook county a certificate that said improvement conformed substantially to the requirements of the original ordinance for the construction of the same, and November 11, 1910, the county court entered an order finding the facts in the certificate to be true. The street railway was reconstructed with new foundations, ties, rails, accessories, and pavement pursuant to plans and specifications approved by the board of supervising engineers. The appellant company was not advised with and had nothing to do with reference to the plans and specifications as to relaying and rebuilding the railway tracks. When the railway company completed the reconstruction of its roadway and tracks it began operating heavier cars than theretofore used on that track; that new cars each weighing from 9,000 to 12,000 pounds more than the old. Within about two years after the completion of the improvement defects began to appear in it, most, if not all of them, adjacent to and along the rails of the street railway. These imperfections afterwards spread outwards from the rails towards the curbs. The defects consisted largely in depressions of the creosoted blocks. Later, the surface of the pavement rose in places between the outside rails and the curbs. All the defects appeared within five years from the 1st day of December next following the completion and acceptance of the contract. The great weight of evidence in the record is to the effect that the depressions in the surface of the pavement, and possibly all other defects, resulted from displacement of the sand cushion beneath the blocks; that the risings or swells in the surface of the pavement resulted from the crowding together or heaping up of the sand cushion beneath the blocks.

Counsel for appellant argue that the foundation of the railway track was not built strong enough to sustain the heavier cars used after this pavement was put in; that the rails, being permanently depressed, afforded an opportunity, by the vibration of the rails and the water falling upon the pavement to pump or draw the sand cushion out from under the creosoted blocks into this drpressed surface in or about the rails of the street railway company or heap the sand up under certain portions of the pavement. Counsel for the city argue that there was a defect in the contour of the surface of the roadway as originally constructed which permitted water to drain towards the rails, and this, aided by the vibration of the rails, forced the sand out. The record shows that after the track had been used for some time the rails were raised slightly by the street railway company and apparently a firmer foundation put under them, which, it seems, tended to lessen the vibration, though there is testimony that it was hardly possible to eliminate entirely the vibration from the heavy traffic of modern street cars. A witness testified that at the time of putting in this improvement it was impossible to determine whether the specifications were adequate for the reconstruction of the street railway tracks and the operation of cars. While there is some conflict in the testimony on the various points, we think from this record that there can be no question that the pavement was constructed, the material furnished, and the work performed in accordance with the terms of the ordinance, plans, and specifications, and that all of the material defects in the pavement were caused by the sand cushion not remaining in place between the concrete base and the creosoted blocks.

Shortly after this suit was begun, it being recognized that the public interests required that the pavement should be repaired at once in order to prevent further deterioration, it was agreed by the parties that the city officials should, if possible, procure an appropriation for the cost of such repairs, which should be deposited with the clerk of the circuit court, and that the company should complete the...