Ruch v. York
Decision Date | 06 July 1911 |
Docket Number | 122 |
Citation | 81 A. 891,233 Pa. 36 |
Parties | Ruch, Appellant, v. York |
Court | Pennsylvania Supreme Court |
[Copyrighted Material Omitted]
Argued May 15, 1911
Appeal, No. 122, Jan. T., 1911, by plaintiffs, from judgment of C.P. York Co., April T., 1911, No. 35, for defendant on demurrer to statement in case of George W. Ruch and Joseph N Ruch, trading as George W. Ruch & Company v. York City. Reversed.
Assumpsit to recover a balance alleged to be due on a contract for the construction of a sewer system.
Demurrer to statement. Before BITTENGER, P.J.
The items of the plaintiffs' claim were as follows: (a) $12,406.40, for work on so-called "dotted line" and "no line" streets; (b) $2,704.76, for extra excavations for house connections below the average depth of six feet; (c) $1,610.11, for removing and relaying paving on streets over trenches dug by plaintiffs; (d) $47,688.69, alleged damage by reason of the failure of the city to provide an outlet for the sewers laid by plaintiffs; (e) $5,388.15, for cost of cleaning sewers to enable the city to inspect the same before acceptance; and (f) $10,865.98, for amount deducted by the city as liquidated damages suffered by it for failure to complete work on or before January 1, 1906, as provided in the contract.
Notice by advertisement was given by the city that sealed proposals would be received for the construction of a system of sewers in the city of York. Intending contractors were invited to inspect the plans, specifications and form of contract at the office of the resident engineer of the board of public works. The letting of the work was to be in three separate contracts, denominated contract "A," contract "B" and contract "C," the latter of which was to be a discharge sewer with overflow chamber and all appurtenances. Contract "A" and contract "B" were let, the latter to the plaintiffs on March 28, 1904; contract "C" was not let and the sewer therein provided has not been constructed. Contract "B" was let at unit prices, work was provided for and was to be paid for at the cost thereof plus fifteen per cent. On April 23, 1904, the plaintiffs began work under the contract and proceeded with it until December 22, 1906, when, the engineer having certified that the plaintiffs had not made the progress required by the contract and had unreasonably and unnecessarily delayed the work, the city under art. 7 of the contract took charge of and completed the work. On October 1, 1907, the engineer in accordance with art. 12 of the contract, made a final estimate of the amount of work done and certified that the work was completed according to the terms of the contract on September 6, 1907.
The statement avers that the contract was entered into by the plaintiffs upon the faith of the plans, specifications and form of contract shown to them prior to their bid at the office of the resident engineer, and upon the faith of the statements, explanations and directions of the engineer at the said time and place and that plaintiffs made their bid and executed said contract in reliance thereon. It is further averred that the plans indicated by certain marks the location of the streets where the sewerage system was to be constructed, that "solid lines" were explained to represent sewers to be constructed at the present time, and "dotted lines" extensions to be made in the future; that the plans and specifications failed to show the depth of the house connections of the sewerage system and the paving and the character thereof required to be removed and replaced by the contractor; that the engineer instructed the plaintiffs to bid only on the "solid lines" streets as the location of the sewer; that the engineer represented that the house connections would be at the depth of six feet and that if the contractor was required to go any deeper he would be paid therefor as extra work under the contract; that the plans exhibited to the plaintiffs showed the paving on streets and alleys and the character thereof which was to be removed and replaced as provided in the contract; that the engineer represented that an outlet system would be provided by the defendant for the sewers to be constructed under contract "B" and that defendant would provide temporary outlets for the work covered by contract "B" in case the outfall part of the sewerage system, covered by contract "C," should not be complete until it should be completed or progress sufficiently made to furnish ample outlets for the sewers to be constructed under the contract.
The several items of the plaintiffs' claim, except the one for failure to provide an outlet, were submitted to and disallowed by the engineer acting as an arbitrator under the third clause of the contract. The contract, specifications and notice to contractors provide, inter alia, as follows:
Art. III of contract. "All the work under this contract shall be done to the satisfaction of the engineer, who shall in all cases determine the amount, quality, acceptability and fitness of the several amounts of work and materials which are to be paid for hereunder, and shall decide all questions which may arise as to the measurement of quantities and the fulfillment of this contract on the part of the contractor, and shall determine all questions respecting the true construction or meaning of the plans and specifications, and his determination and decision thereon shall be final and conclusive; and such determination and decision in case any question shall arise shall be a condition precedent to the right of the contractor to receive any money hereunder."
Art. IV. "The construction of the work shall be in all respects according to the notice and proposal hereto annexed, the specifications hereinafter set forth and the plans exhibited, which notice, proposal, plans and specifications are made part of this contract."
Art. V. "The contractor agrees that the quantities stated in the notice to bidders, or at other times, are only for the purpose of comparing, on a uniform basis, the bids offered for the work under this contract."
Art. VII. "If the work to be done under this contract shall be abandoned . . . or if at any time the engineer shall be of the opinion, and shall so certify in writing to the board, that the conditions herein specified as to the rate of progress are not fulfilled, or that the work, or any part thereof, is unnecessarily or unreasonably delayed . . . the board may notify the contractor to discontinue all work . . . and the board may thereupon . . . complete the work . . . and charge the expense thereof to the contractor."
Art XI. "The engineer shall make an approximate monthly estimate of the value of the work done and materials incorporated into the work, whenever said monthly work exceeds $500 in value, and eighty per cent of such estimated value will be paid to the contractor when approved by the board."
Art XIV. "The contractor shall do any work not herein otherwise provided for when so ordered in writing by the engineer, and shall, when requested to do so, furnish itemized statements of the cost of the work ordered, and give the engineer access to accounts, bills and vouchers relating thereto."
Art. XV. "If the contractor claims compensation for extra work not ordered as aforesaid, but nevertheless approved by the engineer, he shall, within one week after the beginning of such work, make a written statement of the nature of the work performed, to the engineer, and shall, on or before the fifteenth day of the month succeeding that in which any extra work shall have been done, file with the engineer an itemized statement of the details and amount of such work; and unless such statements shall be made as so required, his claim for compensation shall be forfeited and invalid, and he shall not be entitled to payment on account of any such work."
Art. XVI. "If the contractor is obstructed or delayed in the prosecution or completion of the work by . . . any delay on the part of the city in doing the work or furnishing the materials to be done and furnished by it, the contractor shall have no claim for damages for any such cause or delay, but he shall in such cases be entitled to such extension of the time hereinafter specified for the completion of the work as the engineer shall in writing certify to be just and proper, provided, however, that claim for such extension of time is made by the contractor in writing within a week from the time when any such alleged cause for delay shall occur."
Art. XVII. "It is agreed that the contractor shall complete all of the work under this contract on or before the 1st day of January, 1906, and it is further expressly agreed that time is of the essence of this contract, and the contractor agrees that the city is authorized to deduct and retain out of moneys that may be due or become due to him under this agreement the sum of fifty ($50.00) dollars per day as liquidated damages for each and every day that the work is not completed beyond the time herein stipulated therefor."
Sec. A clause V of Specifications. "All work during its progress and on its completion shall conform to the lines and grades given by the engineer, and shall be...
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