R. F. Conway Co. v. City of Chicago ( 1915 )

Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Contbacts, § 169^*—how contract for improvement construed. Where a contractor as a guaranty of faithful performance of a contract to construct a wooden pavement in a street whereon a street railroad is maintained, agrees to maintain such pavement in a satisfactory condition for a term of years after completion without additional cost to contractee, it is unreasonable to require contractee to continue to use or cause to be used on such street the same type of cars used at the time the improvement was constructed, for the reason that the contract must be deemed to have been made with knowledge of and reference to the possibility that in the future a different and heavier type of cars might be used on such street, whose added weight might have such an effect on the soil of the street as to cause the pavement constructed by the contractor to sink and require repair under the contract. 4. Contracts, § 175^*—how contract for improvement construed. A contract whereby a contractor agrees to construct an improvement, and as a guaranty of the faithful performance thereof further agrees to maintain the same in a satisfactory condition for a term of years after completion, without additional cost to contractee, and also agrees that contractee may retain a part of the contract price during such term to secure such performance, is not a contract to maintain a local improvement by special assessment, although contractee threatens if contractor fails to maintain the improvement as provided by the contract, contractee will cause the necessary repairs to be made and apply to the payment therefor the amounts retained under the contract.