Erie City v. Butler

Opinion,

Me. Justice Paxson :

This was a scire facias sur municipal lien for paving. The city of Erie entered into a contract with the Barber Asphalt Paving Company to pave Eighth street in the city of Erie, the city in no event to be responsible for the cost of said paving except at intersections; the contractor to be at liberty to use the name of the city in filing claims against the owners of property abutting on said street, and to collect the cost of said paving from them. This we gather from the statements in the paper books; the contract is not printed.

The defendant is an owner of property on the street in question, and has filed an affidavit of defence in which he avers that the work was not well done nor according to contract, and that the price charged is extravagant and greatly in excess of what he was told the work would cost when he signed the petition to councils asking that the street should be paved.

When work of this kind is done by contract with the municipal authorities, the said authorities paying therefor and then collecting the same from the property owners either directly or by allowing the contractor to use the name of the city, and the work is accepted by the city authorities, it is at least doubtful whether a defence of this kind could be set up. This was conceded by the learned counsel for the defendant. In the case in hand, the city is under no liability whatever. The real plaintiff is not the city, but the contractor. In Pepper v. Philadelphia, 114 Pa. 96, it was said: “But in this state, where by the laws and ordinances the contractor receives the assessment bills in payment from the city, and it turns out that his work was so defectively done as to be worthless, he has no just right to recover in an action against the property owner, and the latter is not precluded from the defence because he is not a nominal party to the contract. If the work was substantially done as contracted for, answers the intended purpose, but in some minor particulars which do not materially affect its usefulness the contractor failed, then the property owner may have a deduction for such failure. This is not the case of a municipality contracting for a public improvement, accepting it, and making payment therefor absolutely, and afterwards itself collecting the assessments; and it is unnecessary to consider whether in that case the property owner could allege defective work as a matter of defence against the tax.” In Watson v. Philadelphia, 93 Pa. 111, it was held that a substantial compliance with the contract was sufficient to entitle the contractor to recover.

The affidavit of defence is rich in adjectives and meagre in facts. It refers to the contract between the city and the Barber Asphalt Paving Company, but no copy thereof is annexed, and we are not informed of its terms, excepting to the extent that the defendant has furnished us with his construction of it. Nor is any reason given for this omission. It is presumed to be on file in the proper office, accessible to every one who wants to see it. This is a fatal defect. Where, in an affidavit of defence, reference is made to a paper, a copy must be annexed in order that the court may judge of its legal effect.

• The affidavit states that the work was to be approved by the city engineer; it does not state that it was not so approved; it merely says “that deponent has been unable to find any record in the proper office showing such approval by said city engineer.” This is an evasive averment and might as well have been omitted. It has no force.

The affidavit alleges that the contract called for a concrete foundation for the pavement. It then avers, “ That in fact the material used for said bed or foundation was a poor and inferior stuff, wholly unfit for the purpose for which it was used, being soft and incapable of hardening into a solid mass, or of making a good and proper foundation, as provided for in said contract.” This is a mere opinion or conclusion of the defendant, expressed with sufficient confidence, but wholly unsupported by any facts. What was this “poor inferior stuff ” to which he alludes ? Surely he could have told us. It was put down in front of his own door; he must have seen the work going on every day; and if he cannot tell us what it was he can hardly expect us' to take his opinion as to its quality.

All that the defendant is called upon to pay for, is the pavement in front of his own property. He does not allege any special defect in this portion of the work, except in his reference to the work on the street generally. And it is to be noticed that the pavement had been laid months before the affidavit of defence was filed; it had stood the test of a severe winter, and there is not a word as to the condition of the street at the time the defence was taken. It is his mere opinion of the work at the time it was done. And there is no averment that the pavement is not now such as to be reasonably satisfactory, and capable of being used for the purpose for which it was intended. And while it is stated the work was not worth the price charged, we are not informed as to what it is worth. As was said in Pepper v.Philadelphia, supra, “All he (the defendant) was entitled to under the evidence was a deduction from the contract price, if the jury found defects which lessened the value of the pavement.” The defendant is seeking to evade all contribution Avhatever to the expense of this work, upon an allegation that the contractor has not fully complied Avith its contract Avith the city, where the city makes no such allegation, Avithout furnishing us with a copy of the contract, so that we can see just what the contractor agreed to do.

We are of the opinion that the affidavit was insufficient and that the plaintiff was entitled to judgment.

The judgment is reversed, and it is ordered that the record be remitted to the court below, Avith direction to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown why such judgment should not be so entered.

It is further ordered that a similar judgment be entered in the cases Nos. 27, 28, 29, 80, 31, 32, and 33 of January Term, 1888.^*

* Seven other like cases argued with this.