DocketNumber: Nos. 10,513—(57)
Citation Numbers: 69 Minn. 453
Judges: Collins
Filed Date: 10/26/1897
Status: Precedential
Modified Date: 9/9/2022
This appeal is from an order sustaining a general demurrer to plaintiff’s reply. From the complaint and answer it appears that in 1887 defendant’s board of public works invited bids or proposals
“The street shall be graded to conform to the grade as given by the engineer, and thoroughly puddled, rammed, and rolled with a 15-ton steam road roller. The filling shall be of sand, clay, earth, or gravel, free from any animal or vegetable matter or any perishable material, and shall be put in layers not more than two feet thick, well puddled and rammed, and made so firm and compact as to be secure from settling.”
And further:
If, during the first ten years, “it shall be demonstrated that the material is defective from overburning or improper mixing, or any other preventable cause, or that the workmanship had been done in an unskillful manner, the contractor shall, at his own cost and expense, upon an order of the board of public works, entirely remove the cushion coat of asphaltum, and replace the same to the satisfaction of the said board of public works.”
And also:
“If, at any time within twenty years after the completion and acceptance of the work to be done under these specifications, the work shall, in the judgment of the board of public works, require to be repaired, the said board of public works shall, through its engineer or clerk, notify the contractor to make the repairs required; and, if the contractor shall neglect to make such repairs within six days from the date of the service of such notice, then the board of public works shall have the right to cause such repairs to be made in such manner as they shall deem best, and the whole cost thereof, both for labor and materials, shall be paid out from the special fund hereinafter mentioned.”
And again:
*455 “Bidders must examine and judge for themselves as to the location of the proposed work, the nature of the excavations to be made, and the work to be done. It is understood that the whole of the work under this contract is to be done at the contractor’s risk, and he is to assume the responsibility and risk of all damage to the work, or to property on the line of said work, which may be occasioned by floods, backwater, caving of the street, settling of the foundation of building, or from any other cause whatever.”
The proposals or bids, the plans and specifications, and the contracts were set out verbatim et literatim, and made a part of defendant’s answer, and in its reply plaintiff admitted each to be as stated. It was then alleged, in the pleading just referred to, that, long prior to the execution of these contracts, defendant city had made excavations in the center of each of these avenues for sewer purposes; that these excavations were very deep, sewers being constructed therein; that the filling up of such excavations to the surface was imperfectly, carelessly, and negligently done by defendant, so that the earth over the sewers was liable to settle and lower the surface of the avenues; that for many years thereafter said avenues had been used as public highways; and that, when plaintiff entered into the contracts, there was no evidence or means of discovery of such imperfect, careless, and negligent filling, and plaintiff had no knowledge of it, or of the time when the sewers had been constructed.
Plaintiff’s counsel assert in their brief — quite correctly — that there is involved here nothing more than a construction of the contracts ; their exact position being that from the pleadings it clearly appears that the materials were furnished afid the work performed under clauses in the contracts by which plaintiff contractor agreed “to do all and any work that may be specially ordered by the city council to meet unforeseen obstacles, for the following prices.” And it was further specified that these agreed prices should be “for work not required by the plans or specifications, where specially ordered by the city council to meet unforeseen obstacles.”
We cannot concede the correctness of counsel’s position. On the contrary, it is clear to our minds that an action has been brought to recover for materials and work furnished and performed within the first ten years in making legitimate repairs upon av
The whole of the work was, in clear and unmistakable words, stipulated to be done at plaintiff’s risk, and it expressly assumed the responsibility and risk which might be occasioned to the work by reason of any caving of the street. Had the filling and grading been done in strict compliance with the terms of the contracts, and had the foundations for the bed of concrete been made firm and compact, and secure from settling, as plaintiff agreed, the paving would have remained in place, and the repairs would have been unnecessary.
The allegations in the reply that there was no evidence of, or means of discovery of, the existence of the imperfect, careless, and negligent filling of the sewer excavations by the city when the contracts were entered into, and that plaintiff had no knowledge of the facts, do not excuse the latter from the faithful performance of these contracts. The plaintiff assumed the risks which attended its agreement to prepare the foundations for these pavements so that they would not settle, and, of course, must abide by its agreement so to do.
Finally, with reference to the contention that the pleadings show that the work came within that part of the contracts which prescrib
Order affirmed.
BUCK, J., absent, took no part.