Salt Lake City v. Smith

• Citation: 104 F. 457
• Decision Date: 15 October 1900
• Docket Number: 1,365.
• Parties: SALT LAKE CITY v. SMITH et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

104 F. 457

SALT LAKE CITY v. SMITH et al.

No. 1,365.

United States Court of Appeals, Eighth Circuit.

October 15, 1900

Charles S. Varian (Frank B. Stephens and Franklin S. Richards, on the brief), for plaintiff in error.

John W Judd and Oscar Reuter, for defendants in error.

E. L Dubois and Joseph Williams made a contract with Salt Lake City on March 10, 1891, to furnish the materials and perform the necessary work, except that required to make the excavations, to construct a covered conduit for the purpose of leading the waters of Parley's creek from a point in Parley's canon to Salt Lake City,-- a distance of about six miles. After they had entered upon the performance of this undertaking, and before they completed it, they assigned their contract and their claim against the city to Joseph H. Smith, G. G. Symes, H. A. W. Tabor, and J. W. Graham, who finished the work, and then sued the city for $97,007.61, which they alleged to be the reasonable value of extra materials and labor which they and their assignors had furnished to the city in the construction of the conduit under the direction of the city engineer. The city denied liability, and averred that these alleged extras constituted a part of the work which the contractors and their assigns were required to perform, and that they had received payment therefor at the prices fixed in the contract. The case has been tried three times. The last trial was before a jury, and it resulted in a judgment of $21,146.66 against the city, which now presents this writ of error for its reversal. Since the commencement of this action one of the original plaintiffs (G. C. Symes) has died, and Sophie S. Symes, his administratrix, has been substituted in his place. For the sake of brevity, those who have been and are seeking to enforce the claim against the city which has resulted in this judgment will be called the 'plaintiffs,' and Salt Lake City, the 'defendant,' in this statement and in the following opinion.

The plaintiffs alleged in their complaint: That the defendant advertised for bids for the construction of the conduit in accordance with maps and plans in the office of the city engineer. That Dubois & Williams examined these maps and plans, and the ground, upon the line laid out and staked by the city, which was such that it would require little or no stone masonry of any kind, no tunnels of any length, but an open trench, not to exceed six to eight feet in depth, over comparatively level ground throughout its entire length. That they made their bid with direct reference to constructing a conduit over the ground thus marked. That the instructions to bidders furnished by the city, and upon which the contractors relied, contained this provision and estimate: 'For the purpose of arriving at the comparative value of the respective bids, the following quantities will be taken as approximating the actual quantities which the execution of the work will develop, and shall be used for no other purpose in connection with this contract. Approximate quantities: * * * Tunneling in earth, including timber, 10 cubic yards; tunneling in solid rock, 150 cubic yards; concrete masonry, 8,000 cubic yards; brick masonry, 2,500 cubic yards; cut-stone masonry, 10 cubic yards; rubble masonry, 10 cubic yards; rubble masonry laid dry, 10 cubic yards; riprap, 100 cubic yards; cement plaster, 40,000 square yards; lumber in the work per thousand feet, 10,000, board measure; cast-iron pipe, 36 inches, laid, 100 lineal feet; wrought-iron pipe, 36 inches, laid, 100 lineal feet; wooden pipe, 36 inches, laid, 100 lineal feet. ' That there was nothing in the maps, plans, or specifications that indicated that the bidders would be required to build any dam across Parley's creek, or to construct any wells or cisterns. That, in reliance upon these maps and plans, they prepared their bid and entered into their contract, and that in doing so they did not take into consideration the construction of any cut-stone culverts, or the lining of any tunnel with concrete masonry, or the laying of any pipes therein, or the building of any wells or cisterns or any dam across Parley's canon, and that all this work was of a more expensive and of an entirely different kind, nature, and character from any work described in the specifications or instructions to bidders, or in the directions or instructions of the city engineer, and no such work would have been required if the conduit had been constructed over the ground where the line was staked out and surveyed. They averred that Dubois & Williams, in this state of the case, made the lowest bid, and entered into the contract to furnish the material and do all the work, except the excavation, for the construction of this conduit, and to accept and receive as compensation for the kinds of work they performed the following prices: Concrete masonry, per cubic yard, $5.97; brick masonry, per cubic yard, $8.85; cut-stone masonry, per cubic yard, $12.40; rubble masonry, per cubic yard, $7.50; rubble masonry, laid dry, per cubic yard, $5; riprap, per cubic yard, $3; cement plaster, per square yard, 34 cents; lumber used in the work, per 1,000 feet, board measure, $35; cast-iron pipe, 36 inches, laid, per lineal foot, $11.68; wrought-iron pipe, 36 inches, laid, per lineal foot, $6.95; wooden pipe, 36 inches, laid, per lineal foot, $3.45. They alleged that they commenced to construct the conduit at Salt Lake City, and advanced with the work towards Parley's canon; that, after they had constructed in the open trench over four miles thereof, the line or route of the conduit for the last mile was materially changed by the city engineer from comparatively level ground to a course over deep ravines and through hills, which required expensive tunnels, the lining of such tunnels at great expense with concrete masonry, the laying of heavy iron pipes therein, and the construction of large and expensive cut-stone culverts, which would not have been necessary if the line and plan of the work had not been changed; that they constructed the conduit in the place and manner directed by the engineer of the city; that, instead of furnishing 10 cubic yards of cut-stone masonry, they were required to and did build 865.44 cubic yards thereof; that, instead of 10 cubic yards of rubble masonry, they were required to and did build 134.63 cubic yards thereof; that the masonry so constructed was of an entirely different character, in a different location, and worth more than twice as much per cubic yard as the nominal quantity for which they bid, and which they agreed to construct; and that, because this work was of a different nature, character, and kind from that mentioned in the contract, it was not covered thereby, and they were entitled to recover the reasonable value thereof, which they alleged to be more than $25,000. They asserted that, by reason of the changes in the line and route over which the conduit was constructed, they were required to construct a concrete conduit through the tunnels; that this work was of a nature entirely different from that of constructing a conduit in an open trench; and that they were entitled to recover the reasonable value of this work, which they claimed to be more than $28,000. They averred that they were required to construct and did build an expensive concrete and cut-stone dam to gather the waters of Parley's creek, which was not contemplated or mentioned in the plans, specifications, bid, or contract, and that the work and material furnished upon this dam were worth more than $26,000. For these and other similar items of materials and labor they asked to recover the $97,007.61 for which the suit was brought. The answer of the defendant was that the line or route of the conduit for the mile for which the tunnels, cut-stone masonry, rubble masonry, and dam were required had not been located or surveyed when the bids and the contract were made; that Dubois & Williams made their bid and contract with knowledge of this fact; that most of the work and material for which they claimed to recover reasonable compensation in their complaint was of the same kind and character as that specified in the contract; that its price was fixed thereby; that the plaintiffs had been paid this price; that, wherever any extra material or work had been required, Dubois & Williams had, by their contract empowered the engineer of the city to determine its price; that he had done so; and that they had been paid this price, so that there was no liability upon the city on account of any of the matters set forth in the complaint.

The testimony of the witnesses of the respective parties to this action generally supported the averments of their pleadings. Upon the questions whether or not a line for the masonry conduit had been surveyed and staked out over the last mile of the course before the bids were received and the contract was made, and whether or not the concrete masonry in the tunnels and the cut-stone and rubble masonry in the culverts and dam were of the same nature and character as those specified in the approximate estimate of the engineer and in the contract, and upon the question of the reasonable value of this work and material, the testimony of the parties is in hopeless conflict. Out of the mass of conflicting evidence however, a few salient facts stand forth, established beyond peradventure. One of them is that the line where this conduit was subsequently actually constructed over the mile in dispute was neither staked nor marked upon the ground, nor shown upon any map or plan exhibited to the bidders, before the contract was made. This portion of the line had either never been surveyed and located at all, or it had been surveyed and located on another and different line, from which it...