The City of McPherson v. Stucker
| Decision Date | 11 June 1927 |
| Docket Number | 26,984 |
| Citation | 123 Kan. 584,256 P. 963 |
| Court | Kansas Supreme Court |
| Parties | THE CITY OF MCPHERSON, Appellant, v. H. M. STUCKER, N. E. STUCKER and N. E. STRACHAN, doing business under the name of STUCKER, STUCKER & STRACHAN, and THE FIDELITY & DEPOSIT COMPANY OF MARYLAND, Appellees |
Decided January, 1927. [Copyrighted Material Omitted]
Appeal from McPherson district court; WILLIAM G. FAIRCHILD, judge. Opinion on rehearing filed June 11, 1927. Former judgment adhered to. (For original opinion of reversal see 122 Kan 595.)
Original judgment reversal adhered.
SYLLABUS BY THE COURT.
BUILDING AND CONSTRUCTION CONTRACTS--Breach of Contractor's Agreement--Liability for Damages. A contractor who agrees to build a structure to be used for a particular purpose is liable for all natural and resultant damages from failure so to do.
Gus Nyquist, Frank O. Johnson, James A. Cassler, all of McPherson, and Bert Steeper, of Kansas City, Mo., for the appellant.
C. A. Smart, of Lawrence, P. J. Galle and James L. Galle, both of McPherson, for the appellees.
The action was one for damages for failure to waterproof a concrete standpipe. A demurrer to the city's evidence was sustained and the city appealed. Decision was rendered February 12, 1927, reversing the judgment. (City of McPherson v. Strucker, 122 Kan. 595, 256 P. 963.) Defendants then filed a motion for rehearing, which was allowed, and the case has been again submitted. A brief statement only of the facts is necessary.
The city advertised for bids to build a concrete water tower. The specifications on which bids were invited contained the statement: "Full specifications as to method of waterproofing shall be submitted with the bid which shall include the weight per square foot or yard of fabric and bituminous material to be used." Defendants were low bidders. Their bid contained the following alternative proposition "If Ferro-tite waterproofing is used, deduct $ 700." The city, after referring the matter to their engineers for investigation, entered into a contract with the defendants allowing the use of the Ferrotite process. Defendants sublet the waterproofing, taking a bond from their subcontractor for a water-tight structure. Specifications of the waterproofing were furnished by the defendants or their subcontractors, were accepted by the city and the work proceeded. The tank when completed and tested was found to leak. All together, three attempts were made by the subcontractor to make it water-tight. They failed and defendants declined to proceed further, advised and requested the city to finish the job. It did so. It advertised for bids, completed the work and sued to recover its damages. The trial court was of the opinion the contractors did not guarantee a water-tight structure, a result, but guaranteed only material and workmanship. This court thought otherwise and has not changed its view. The same questions are again presented, perhaps in some respects more clearly. The defendants contend that they furnished the material and did the work in accordance with the plans and specifications furnished by the city; that the failure to produce the desired result, a water-tight tank, was because of the city's faulty...
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Arch Sellery, Inc. v. Simpson
...the work accomplishes the agreed result. Glass v. Wiesner, 172 Kan. 133, 238 P.2d 712; City of McPherson v. Stucker, 122 Kan. 595, 123 Kan. 584, 256 P. 963. Parties who contract on subject matter concerning which known usages prevail incorporate into the agreement such implications if nothi......
- The City of McPherson v. Stucker