Gilfillan v. City of Bartlesville , 46 Okla. 428 ( 1915 )

Plaintiffs in error will be designated as defendants, and defendant in error as plaintiff, in accord with their respective titles in the trial court.

On December 12, 1908, defendants, as contractors, entered into a contract with plaintiff to pave one of its streets in accord with its own plans and specifications; and this contract contains, among other things, the following provision:

"The contractors further agree that they will maintain ingood condition said paving, curbing, and guttering, and everypart thereof, for the full period of five years from the dateof the completion thereof, and that during such period of fiveyears they will, at their own expense, replace and restore anydefective material used in said work or any part thereof, andwill in like manner and for a like period of time repair anyand all defects caused by poor workmanship or defectivematerials or by any fault of the contractors; and that for the full and faithful performance of the obligations herein named they will, within ten days from the signing of this contract, execute and deliver to the city treasurer of said city a bond in the penal sum of $2,000 with good and sufficient surety to be approved by the mayor of said city."

The bond required of defendants by this contract was duly executed to the plaintiff, and is now before us in the case ofPhillips v. City of Bartlesville, ante, 148 P. 1016.

The pavement was constructed by defendants and accepted by the plaintiff, and was paid for by means of the latter's bonds issued therefor. Within about six months after its completion, defects in the pavement, as originally constructed, were discovered; and within two years after its completion practically all of its top surface had worn off.

Plaintiff brought this action upon said contract and, upon trial to a jury, recovered judgment against defendants for $8,600, without allegation or proof of the cause of such defect or of the party against whom the same is chargeable, upon the theory that defendants were bound to "maintain in good condition said paving" without regard to the cause of such defect or of the party blamable therefor.

The answer, among other things, alleges and defendant offered to prove, but the court, upon objection, rejected evidence, that the cause of such defect was not chargeable to them but to plaintiff, in that the latter's plans and specifications did not provide for more durable paving.

The question presented by defendants' answer and offer of proof was also raised by their motion to require it to make its petition more definite and certain, by demurrer to its evidence and by requested instruction to the jury; and this question requires a construction of the foregoing italicized portion of the contract, which must be done with reference to the act of April 17, 1908 (Session Laws 1907-08, p. 170; section 725, Comp. L. 1909), which reads as follows:

"* * * And the mayor and council shall, by said resolution, provide that the contractor shall execute to the city a good and sufficient bond, in an amount to be stated in such resolution, conditioned for the full and faithful execution ofthe work and the performance of the contract and for theprotection of the city and all property owners interestedagainst any loss or damage by reason of the negligence orimproper execution of the work, and may require a bond in anamount to be stated in such resolution for the maintenance ingood condition of such improvement for a period of not lessthan five years from the time of its completion, or both, in the discretion of the mayor and council."

Defendants, in effect, contend (1) that the contract is not for maintenance except as against their own fault, if any, in failing to comply with the plaintiff's plans and specifications, and (2) that to construe either said provisions of the contract or said provisions of the statute otherwise would render them violative of the constitutional provision expressly declaring the legislative power to authorize counties and municipalities to levy assessments for "local improvements upon property benefited thereby," which thus, upon the principle of "expressio unius est exclusio alterius," impliedly inhibits such levy except for such improvements, in that such a provision would involve a charge for repairs as contradistinguished from improvements against such property in such a contract, although they neither allege nor prove that the price they received under the contract exceeded what the original improvement otherwise would have cost, not offer to return any portion of the amount thereof.

The foregoing provision of the statute is an exercise of legislative power under the Constitution (Missouri, K. T. Ry.Co. v. City of Tulsa et al., 145 P. 398, and Kerker et al. v.Bocher et al., 20 Okla. 729, 95 P. 981) and must be construed with and as limited by section 7, art. 10 (Williams' Sec. 272), of the same, which read as follows:

"The Legislature may authorize county and municipal corporations to levy and collect assessments for local improvements upon property benefited thereby, homesteads included, without regard to a cash valuation."

That the distinction between "improvements" and "repairs" made in many of the decided cases is not a conclusive criterion in ascertaining what is an improvement and is, therefore, almost, if not quite, unimportant, will be seen from an examination of 11 Enc. U.S. Sup. Ct. Rep. 3, 4, 6, andStevens et al. v. City of Port Huron, 149 Mich. 536, 113 N.W. 291, 12 Ann. Cas. 603, and the cases therein cited; and that the term "local improvements," as used in our Constitution includes all, and must be limited to such improvements as are in fact or are determined in the proper exercise of legislative discretion to be special and peculiarly beneficial to the property affected and thus to its owners, as contradistinguished from such as are only beneficial to property in general or to the general public, and which may be made a charge upon such property without violating the fourteenth amendment to the federal Constitution, will appear from an examination of 11 Enc. U.S. Sup. Ct. Rep. 3, 4, 6, and Stevens et al. v. City of PortHuron, supra, and its citations, together with the following cases: Norwood v. Baker, 172 U.S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, which should be examined in the light of the next following case: French v. Barber Asphalt Pav. Co.,181 U.S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879, affirming 158 Mo. 534, 58 S.W. 934, 54 L.R.A. 492, Wright v. Davidson, 181 U.S. 371, 21 Sup. Ct. 616, 45 L. Ed. 900; Webster v. City of Fargo,181 U.S. 394, 21 Sup. Ct. 623, 45 L. Ed. 912; Town of Tonawanda v. Lyon,181 U.S. 389, 21 Sup. Ct. 609, 45 L. Ed. 908; Chadwick v. Kelly,187 U.S. 540, 23 Sup. Ct. 175, 47 L. Ed. 293; Schaefer v.Werling et al., 188 U.S. 516, 23 Sup. Ct. 449, 47 L. Ed. 570;City of Seattle v. Kelleher, Adm'r, 195 U.S. 351, 25 Sup. Ct. 44, 49 L. Ed. 232; Louisville N. Ry. Co. v. Barber AsphaltPav. Co., 197 U.S. 430, 25 Sup. Ct. 466, 49 L. Ed. 819;Cleveland, C., C. St. L. Ry. Co. v. Porter, 210 U.S. 177, 28 Sup. Ct. 647, 52 L. Ed. 1012.

In 11 Enc. U.S. Sup. Ct. Rep. 3, 4, it is said:

"The Legislature, in the exercise of the right of taxation, has the authority to direct the whole, or such part as it may prescribe, of the expense of a public improvement, such as the establishing, the widening, the grading or the repair of a street, to be assessed upon the owners of lands benefited thereby. And according to the weight of judicial authority, the Legislature has a large discretion in defining the territory to be deemed specially benefited by a public improvement, and which may be subjected to special assessment to meet the cost of such improvements."

In Oklahoma City v. Shields, 22 Okla. 265, 100 P. 559, where other provisions of the said act of April 17, 1908, were considered, the same was upheld as valid.

The above-quoted provision of the statute evidently authorizes a contract for maintenance as an implied guaranty of the durability of the improvement, which guaranty assumes the adequacy of the plans and specifications upon which the municipality invites bids, thus eliminating every question in that regard, and, being unconditional as to the adequacy of the work and materials, in effect binds the contractor to maintain in good condition as against any and all defects in the original improvement.

Such an unconditional guaranty is but a proper precaution against the difficulty, if not impossibility, of discovering and proving against the contractors the precise cause of defects apparent only after construction and acceptance. In 2 Municipal Corporations (Dillon) Sec. 289, it is said:

"Contractors for street paving, in their endeavor to induce municipal governments to adopt their pavements, make representations as to its character and durability, and it is proper that some remedy should be reserved to the municipality by which it can enforce their contract and representations in this regard. * * * In pavements, particularly in asphalt, the durability depends very largely upon the character of the work, the condition of the foundation, and the mixture of the material used; and it is not difficult for contractors to deceive the inspectors in regard thereto:"

Mr. Dillon thus states the evil which our statute evidently sought to remedy by authorizing a contract for maintenance as an unconditional implied guaranty of the durability of the work and material.

This provision of the statute must, of course, be read into this contract as a part thereof; and the pertinent clauses of the contract must be construed with due regard to it. 9 Cyc. 582.

The defendants' undertaking to "maintain in good condition," taken literally, is comprehensive enough to require them to do all they undertake to do by their connectively following but literally independent undertaking for the same period to "replace and restore any defective material used," and to "repair any and all defects caused by poor workmanship or defective materials or by any fault of the contractors"; and this observation suggests the question as to whether the latter clause serves any useful purpose, unless it be regarded as merely explanatory of the preceding clause, and as limiting it to the duty of maintenance as against any actual fault on the part of the contractors, as in failing to construct according to plans and specifications. This question, however, could more easily be answered in the affirmative, if said latter clause was not so comprehensive of the possible faults of the contractors in respect to work and material that when we attempt to view it as explaining and so limiting the preceding clause it seems all sufficient in itself, and as rendering useless the clause we thus attempt to explain and limit, that is, the clause imposing upon defendants the duty to "maintain in good condition for the full period of five years from the date of completion." In our opinion each of these clauses must be given effect, and the clause requiring defendants to "repair any and all defects caused by poor workmanship or defective materials or by any fault of the contractors," in so far as it impliedly negatives the idea of an obligation to "maintain in good condition" as against defects due to inadequacy of plaintiff's own plans and specifications, must be regarded as literally inconsistent with this obligation to "maintain in good condition"; and, in order to harmonize these otherwise inconsistent clauses, they must be construed together with reference to said provisions of the statute and the intent of the parties thus collected from the whole contract. 9 Cyc. 583.

Constructing the aforesaid two clauses of the contract before us together, with reference to the said provision of the statute, we think the first requires us to slightly expand what might otherwise be thought the restricted meaning of the latter, so that, in one of its aspects, the latter may possibly include incidentally, as a fault of the contractor's, inadequacy of plans and specifications, although its general and controlling aspect is that of an obligation to maintain in good condition which implies an unconditional guaranty of adequacy of the work and material required by the plans and specifications to endure without need of repairs for the designated period; and we also think the latter clause requires us to limit the otherwise too comprehensive meaning of the former, and to hold that it requires maintenance only as against want of durability due to defects in the original improvement, or, in other words, as against the actual or agreed fault of the defendant contractors.

The contract, as between the parties thereto, in view of the above-quoted provision of the statute and the nature of the work of construction as stated by Mr. Dillon, is construed as predicated upon the fixed and conclusive assumption by the contractors that the plans and specifications are inadequate to justify their implied guaranty of durability in their agreement to maintain in good condition for the full period of five years from the date of completion of the work of construction. As between these parties, all defects in the pavement, as originally constructed, must in effect be charged to the fault of the defendants, who undertook to maintain for the full period of five years as an implied guaranty that the work done and the material furnished by them according to the plans and specifications would endure without need of repairs for that period.

As we view it, the provision for maintenance in good condition, implying as it does a guaranty of adequate work and material to endure for the specified period without need of repairs, is not a provision for ordinary repairs, which are generally unrelated to any question of defect in the original construction; but, if it be regarded as a provision for such ordinary repairs, it does not necessarily follow that it is not an improvement specially and peculiarly beneficial to the property sought to be charged with the cost of its construction, and thus within the meaning of the term "local improvements," as used in the constitutional provision quoted, as will be seen from an examination of the foregoing authorities, which show that the fact or legislative determination of benefit to the property, and the character of such benefit, determines whether the thing is a local improvement.

In the case of Cameron-Hawn Realty Co. v. City of Albany,207 N.Y. 377, 101 N.E. 162, 49 L.R.A. (N.S.) 922, it is held:

"A paving contractor is not relieved from liability on the portion of the contract requiring him to keep the pavement in repair for a specified time, by the fact that he fully complied with the specifications in performing the work, and that the repairs were necessitated by the faulty plans adopted for the improvement."

Also see Barber Asphalt Pav. Co. v. Louisville, 123 Ky. 687, 97 S.W. 31, 29 Ky. Law Rep. 1255, 9 L.R.A. (N.S.) 154, with notes, and City of Danville v. Danville Ry. Elec. Co.,114 Va. 382, 76 S.E. 913, 43 L.R.A. (N.S.) 463, with notes; and as to the power of a city to bind a contractor to repair pavements which he makes, see Portland v. Bituminous Pav. Imp. Co.,33 Or. 307, 52 P. 28, 44 L.R.A. 527, with notes, 72 Am. St. Rep. 713, with notes. Also see Morton et al. v. Sullivan., 96 S.W. 807, 29 Ky. Law Rep. 943; Allen v. Labsap, 188 Mo. 692, 87 S.W. 926, 3 Ann. Cas. 306; Hedge v. City of Des Moines, 141 Iowa, 4, 119 N.W. 276; Latham v. Village of Wilmette, 168 Ill. 153, 48 N.E. 311; Diver v. Keokuk Savings Bank et al., 126 Iowa, 691, 102 N.W. 542, 3 Ann. Cas. 669; City of Sedalia exrel. Taylor v. Smith, 206 Mo. 346, 104 S.W. 15; Erie City v.Grant, 24 Pa. Sup. Ct. 109.

For the reasons stated, the judgment of the trial court should be affirmed.

By the Court: It is so ordered.