Error
to superior court of Grand Rapids; Richard L. Newnham, Judge.
Action
on a building contract by Henry Schliess against the city of
Grand Rapids. From a judgment for plaintiff, defendant brings
error. Affirmed.
In
November, 1898, plaintiff made a contract with the defendant
city to build the foundation walls for a municipal electric
lighting plant. By the charter of the city (title 9, �� 13
14, 30) the board of public works is intrusted with the
control of the erection and contruction of such buildings.
The board is also authorized to determine and designate the
kind and quality of material to be used. When it has so
determined, it is required to make an estimate of the
probable cost, and report the same to the common council. If
approved, a contract is then made, signed by the mayor and
the president of the board of public works. The contract was
made November 12th, and the work was to be done within 60
days. Those portions of the contract which counsel deemed
material are as follows: 'Build the foundation walls
(colored blue on plans and sections) up to grade line of
thickness shown of native field boulders, to be of selected
large size first quality stone, not less than 12 inches in
thickness by 15 inches in length, laid to line on both sides
well bounded and fitted together.' 'No part of this
contract will be accepted unless it complies fully with these
specifications in the fullest sense of its terms.'
'The contractor shall (if so directed by the architect)
furnish horse manure, and cover all the newly built stonework
during cold weather, to prevent its being injured by
freezing.' 'The contractor agrees that the materials
to be used and the work to be performed shall at all times be
subject to the inspection and approval of the board of public
works, or authorized agent of said city, and, in case any
material is rejected, it shall be immediately removed from
the premises, and not again brought thereon. The contractor
agrees that he will at all times give his personal attention
to the work, and that he will employ none but competent
workmen on the work covered by this contract. The contractor
agrees that the board of public works of said city shall
determine finally all questions as to the proper performance
of his contract, and that the said board may declare this
contract forfeited at any time for the nonperformance of any
part thereof, and may proceed to complete the same without
delay. It is further understood that the liability of the
contractor under this contract shall in no way be lessened by
reason of the board availing itself of the provisions herein
contained. The contractor agrees to commence said work within
ten days after signing this contract, and to prosecute the
same with all due diligence, and finish the same in sixty
working days, for the sum of six thousand eight hundred and
sixty-five dollars, the amount named in this proposal for the
work, now on file in the office of said board; and that for
each and every day that elapses beyond the number of working
days mentioned in said proposal for the completion of this
contract the said board may deduct from any money due the
contractor the sum of ten dollars, in addition to the per
diem of the inspectors employed on the work. It is mutually
agreed between the parties that no deviation from the
contract can be authorized by any inspector of the work, and
that the city is in no way bound to accept work not in
accordance with the specifications, although such work may
not have been objected to by the inspector. The city hereby
agrees to pay the sum aforesaid in article 6 under the
restrictions and limitations herein contained, and to make
payments from time to time in the manner indicated in article
7, on account of the performance of this contract, upon
estimates of the amount of work actually performed and
materials actually used thereon. The amount so paid shall be
such as the board of public works find to be just. Fifteen
per cent. of such estimates may be retained until the
acceptance of the work, and it is agreed that no part of the
retained percentage shall be paid to the contractor before
the final acceptance of the work, except upon the written
consent of the bondsmen. It is mutually understood that the
intent of the contract is to secure first-class construction
workmanship, and materials, and the contractor hereby agrees
to furnish the same, and be governed in all things by the
regulations herein contained, whether specifically expressed
or implied, and by instructions given by the board of public
works, not inconsistent with this contract. The contractor
agrees that his responsibility shall in no way be lessened by
reason of either party hereto availing itself of any
provisions herein contained.' The work was begun November
16th, was continued until January 18th, when the architect
ordered the work stopped on account of the severe cold
weather. About five-sixths of the work at this time was
completed. The wall appears to have been built in sections
and the larger part of it was completed to the top. Work was
resumed by order of the architect February 22d. The weather
became too cold, and, under orders of the architect, work was
again suspended until March 17th. On that day the board
served a notice upon the plaintiff and his sureties to
complete the job within 10 days thereafter. He at once
resumed work, and the job was nearly completed by the 5th of
April. Soon after this it was discovered that the mortar was
killed by freezing, and it became necessary to take down and
rebuild a portion of the wall. A dispute arose between the
parties as to the responsibility for the condition of the
walls. Plaintiff claimed that he had complied with the
conditions of his contract; that the work was done under the
direction of the architect and inspector, as well as members
of the board of public works; that weekly estimates had been
made by the architect and inspector, and approved by the
architect and the board, and payments made in accordance with
the terms of the contract. Defendant claimed that the
plaintiff had not complied with the terms of his contract;
that the mortar was not as provided; that some smaller stones
were used than the contract provided; and that manure was not
used, at required, for the protection of the walls. Plaintiff
made a proposition to rebuild the unsafe parts of the walls
at a given price. This was accepted by a unanimous vote of
the board. At a subsequent meeting this resolution of
acceptance was rescinded, and the board declared the contract
forfeited, and proceeded to rebuild. Plaintiff brought this
suit to recover the amount due him under the contract,
claiming performance on his part.
Counsel for the plaintiff are not satisfied with
the statement of facts made in appellant's brief, and say
that they 'are so insufficient and inaccurate as to
justify a restatement.' This involves the examination by
this court of a long record to determine and make a statement
of facts. This requires labor which ought not to be imposed
upon us. The material facts, so far as the
questions before us are involved, are not in dispute, and
appear in the following instructions of the court: 'It is
undisputed that plaintiff began the performance of his
contract within the time required thereby; that on or about
December 16th the board of public works ordered the plaintiff
to proceed more rapidly with the work, and notified him that
it must be completed within the time provided by the
contract. It is undisputed that from the time of said notice
plaintiff proceeded with the contract, and continued in its
performance until about January 18th, when he was stopped by
orders from the architect, on the ground that the weather was
too cold to lay stone. It is likewise undisputed that at the
time the plaintiff was stopped by the architect about
five-sixths of the wall had been laid up. It is likewise
undisputed that from about the 18th day of January until at
least the 23d day of February the weather was so unusually
and exceedingly cold that the freezing of the earth, water
pipes, and so forth, was greater than for many previous
years. It is also undisputed that the weather from January
18th to February 23d, and some of the weather after the
latter date, was so cold as to kill cement mortar laid up in
walls above the ground which had not yet dried out. It is
also undisputed that from the time the plaintiff began work
in November until he was stopped in January the weather was
too cold to permit the drying out of the mortar. It is
undisputed that in April it was found that all mortar laid
above the level of the ground before January 18th, and some
laid after March 17th, was frozen and killed. It is likewise
undisputed that about March 15th the board of public works
ordered the plaintiff to complete the construction of the
work within 10 days; that said plaintiff did proceed under
such order, and completed said work, aside from pointing and
plastering the walls and a small part of the coffer dam and
the intake pipe. It is likewise undisputed that for a portion
of the time during which work was done...
