Williams v. Board of Directors

• Decision Date: 03 July 1911
• Citation: 139 S.W. 1136
• Parties: WILLIAMS et al. v. BOARD OF DIRECTORS OF CARDEN BOTTOM LEVEE DIST. NO. 2.
• Court: Arkansas Supreme Court

139 S.W. 1136

WILLIAMS et al. v. BOARD OF DIRECTORS OF CARDEN BOTTOM LEVEE DIST. NO. 2.

Supreme Court of Arkansas.

July 3, 1911.

Appeal from Circuit Court, Yell County; J. H. Basham, Judge.

Action by David R. Williams and others against the Board of Directors of Carden Bottom Levee District No. 2. From a judgment for plaintiffs for a less amount than claimed, they appeal, and defendant takes a cross-appeal. Affirmed.

Appellants sued appellee to recover an amount alleged to be due for the building of six culverts. Appellee defended on the ground that the work was not done according to the contract, and that the work as done was defective. The work was undertaken under a contract between appellants and appellee, which is as follows:

"Witnesseth: That for and in consideration of the payment and covenants hereinafter mentioned to be made and performed by the said board of directors the said party of the first part hereby covenants and agrees to construct and finish to the satisfaction and acceptance of the chief engineer of said levee board six reinforced concrete culverts, located as follows:

"2 48" culverts in upper levee.

"1 72" culverts at steel bridge.

"3 48" culverts along the Petit Jean river.

"Said party of the first part to set the steel doors (to be furnished by the levee board) and have the same in working order.

"All work to be done in accordance with the plans, blue prints and specifications attached hereto, which are made a part of this contract. Work to commence within ten days after the date of sale of the levee bonds of the above-named district; work to be completed within sixty days thereafter. And the said levee board agrees to pay to the said first party, for completing the contract according to its terms, the following amount: Ten and 50/100 dollars per cubic yard in place. (This price to include setting steel doors.) It is expressly understood that the prices herein stipulated to be paid, refer to final and accurate measurements of the work embraced in this contract. And it is further understood that the quantities shown on the attached blue print are only approximate, and may be varied at the discretion of the levee board through its authorized engineer. And when all the work embraced in this contract has been completed agreeably to the specifications, and according to the directions of the chief engineer, a final estimate shall be accurately made by said engineer and the amount due said first party shall be paid to Williams-McQuary Company upon their giving, under seal, a release to the said board of directors from all claims or demands whatsoever, growing in any manner out of this agreement. And it is mutually agreed and distinctly understood that the decision of the chief engineer shall be final and conclusive in any dispute which may arise between the parties to this agreement relative to or touching the same."

The specifications provided in addition for the size of the crushed rock, and the proportion of sand, cement, and crushed rock or gravel that was to be used in the work. The first three culverts that are mentioned in the contract were constructed of concrete. It is the contention of appellants that they constructed them according to the terms of the contract, and that they were accepted by appellee. On the other hand, appellee contends that the culverts had cracks in them, and were otherwise defective, and that it did not accept them. In regard to the three culverts along the Petit Jean river, it is admitted that they were not constructed of concrete, but were what is known as uncoursed rubble masonry, and that the stones used varied in size from a man's fist to as large as a water bucket. Thomas Boles was designated as chief engineer of the district, and this departure from the terms of the contract was authorized by him. Boles and appellants occupied the same office in the city of Ft. Smith, Ark., but neither was interested in the business of the other. D. R. Williams, one of the appellants, testified that he was manager of the firm; that the first three culverts were constructed according to the terms of the contract; that there was no defect in either the work or the materials used, and that the board accepted the culverts. Williams admits that the three culverts along the Petit Jean river were rubble stone masonry, but says that this change was authorized by Boles, the chief engineer; that Lewis Branson, one of the members of the board, told him that he was employed as inspector, and that he knew that these culverts were being constructed of boulders; that other members of the board came along, and saw that the culverts were being made of boulders, and made no objection thereto; that the boulder culverts were as good and as serviceable as concrete culverts, and that they cost nearly or quite as much. Other evidence was introduced by appellants to corroborate the testimony of Williams. On the other hand, Lewis Branson, one of the members of the levee board, testified that the three concrete culverts had cracks in them, and were otherwise defective; that he did not give his approval to the contractors of the work done on the culverts along the Petit Jean river, but, on the contrary, told them that it was not the kind of work the board was looking for. R. E. Cole, one of the members of the levee board, testified that the board discovered on the 24th day of September, 1909, that the three culverts on the Petit Jean river had been built of boulders; that they were informed of this fact by Branson, and were surprised to hear it; that they were then done with the exception of the last one, and they had the foundation of it laid; that he and some of the members of the board went down there and told the plaintiff D. R. Williams that they were afraid of the whole thing, and were surprised at him placing work of that kind in there; that they had never contracted for that class of work, and would never have contracted for it at any price. On November 17, 1909, the board formally passed a resolution declining to accept the culverts along the Petit Jean river, and notified appellants in writing of their refusal to accept them. The final report and certificate of Thomas Boles as chief engineer was made in writing to the board on January 18, 1910. In his report he states that, on account of the difficulty in getting the gravel from the Arkansas river to the site of the culverts along the Petit Jean river, these culverts were built of hard smooth boulders embedded in a thin mortar, that all the voids...