City of Monett v. Gillioz

*424 COX, P. J. Action on bond of M. E. Gillioz as contractor. Judgment for defendants and plaintiff appealed. Gillioz was awarded a contract to build a reservoir for plaintiff and he executed the bond to the city with the other defendants as sureties. The reservoir was-to be built of reinforced concrete according to plans and specifications prepared by the City Engineer. The contract contained the following guarantee on part of the contractor, to-wit: ‘ ‘ The party of the first part expressly agrees to construct the said city reservoir with such material and in such manner that the same shall endure without need of any repairs for a period of three years from and after the first day of July or January next following the completion and acceptance thereof.” Another provision made the city engineer the sole and final arbitrator to determine at all times while the work was in progress whether the contractor was following the specifications and also to determine at any and all times within the three years whether the terms of the guarantee had been met and required the contractor, on written notice from the city engineer, to make any repairs that the engineer should deem necessary. The specification were referred to in the contract and'made a part thereof. The specifications designated fully the material to be used, the proportion of each in the mixture, its manner of mixing, the thickness of the walls and floor and every *425 possible detail of both the work and material. These specifications were examined by the contractor before submitting his bid and he knew their contents when he entered into the contract and executed the guarantee above set out. The condition of the bond covered the guarantee also. The reservoir was built and accepted by the city and the contractor paid the amount of his contract. Later, leaks developed to such an extent that the reservoir would not hold water and the city engineer notified the contractor to repair the reservoir which he refused to do. The city then repaired it by having a new floor put in and brought this suit to recover the cost thereof. The evidence showed that the top or finish coat of cement on the floor which was intended to insure it being water tight, cracked, got loose from the body of the floor and buckled up. The contention of defendants was that this cracking and buckling up of the finish coat of the floor was the cause of the leaks. There was evidence on part of plaintiff that the body of the floor was in bad condition. .The city engineer testified: “I examined the body of the concrete — its condition was rather fierce and I think I was there with Mr. Chapell and one or two others at the time we took out some of the concrete. It wasn’t very hard. It was rather soft. The worst effect probably it had on the reservoir was that it did not hold the finish for the floor and made it leak. It did leak. I think the immediate cause of the cracking and buckling was the expansion from the heat, causing it to rise from the unequal heating of the solid— the puffing. It got hotter at the top than it did at the bottom and of course the top surface of the finish would tend to expand and pull it off from the body of the concrete. ’ ’ The reservoir was partly below the surface of the ground and there was evidence that the water was let out of the reservoir and it allowed to stand for a considerable period of time, with no water in it. There was no cover over the reservoir and during the time it was empty the floor *426 and walls were exposed to the sun, and the evidence of the engineer above set ont and other testimony tended to show that the fact that the body of the floor would be cool on the bottom, the effect of the heat of the sun on the top of the floor would necessarily cause the finish coat on the floor to expand and that would cause it to crack and pull loose from the body of the floor and buckle up and cause leaks in the floor. There was evidence that by the oral direction of the city engineer creek gravel was substituted in part of the work for crushed rock called for in the specifications and that some of this went into the floor. The specifications reserved to the city and its engineer the right to make changes in the specifications but required the changes desired to be put in writing and attached to the specifications before the changes could be made. The only change made was that of substituting creek gravel for crushed stone and this was done orally by the city engineer and the mayor of the city. The above outline of the testimony will be sufficient for the purpose, of passing upon the- correctness of the instructions in this case, which is the real question involved in this appeal. The plaintiff asked and the court refused a peremptory instruction to find for it. This on the theory that defendants had warranted that the reservoir, when completed, would endure for three years without need of repairs and’that since it was admitted that the reservoir had leaked and had to be repaired and the contractor had refused to make the repairs, the bond had been breached and defendant must repay the city the necessary outlay in making the repairs. To that contention, the defendants answered, first, that the specifications were changed against the protest of the contrac- or by substituting creek gravel for crushed stone; second, that plaintiff was notified by the contractor that it would be necessary to keep water in the reservoir to prevent the heat from the sun causing leaks and that *427 plaintiff’s negligence in that respect was the cause of the leaks. On the face of defendants’ guarantee, they were bound to construct the reservoir in such 'a way that it would not need repairs for three years. We think such a provision in the contract was binding even though the plans, specifications and all details of the work were prepared by plaintiff. [Harrison v. Mo. Pac. Ry. Co., 74 Mo. 364, 371; Lake View v. Ritchie, 134 Ill. 208, 25 N. E. 663.] We do not think, however, that the obligation goeto the extent of compelling the contractor to build a reservoir that would withstand all ravages that might result from the negligence of the city or its agents. When the reservoir was completed, it was filled with water and tested to the satisfaction of the city engineer and no leaks were found. If it were true, as the evidence tended to show, that the reservoir was left empty by plaintiff and that leaving the reservoir empty and permitting the heat from the sun to reach the floor of the reservoir would and did cause the leaks of which complaint is made, that result was not contemplated by the parties and was not covered by the guarantee of defendants. [Green River Asphalt Co. v. St. Louis, 188 Mo. 576, 579, 87 S. W. 985; City of St. Louis v. Mo. Granite & Const. Co., 185 S. W. 188, 190.] On that issue, at least, the defendants were entitled to go to the jury. The peremptory instruction asked by plaintiff was properly refused. The other instructions asked by plaintiff and refused were in effect peremptory in their nature and were for. that reason properly refused. The court of its own motion gave an instruction to the effect that if defendant failed to construct the reservoir of such material and in such manner as to endure without repairs for three years and that proper notice was given to the contractor, etc., then plaintiff should recover unless the jury should find that the leaks, if any, were caused from substitution by direction of the city *428 engineer of creek gravel for crushed stone as specified in the contract, or by failure, if any, of the city to protect the reservoir by keeping water therein. This instruction is erroneous in permitting a finding for defendant if creek gravel was substituted for crushed stone by plaintiff and that such substitution was responsible for the leaks. There was no evidence that the leaks were caused by creek gravel being used in lieu of crushed stone. There was evidence that the body of the floor was soft and therefore inferior and that the leaks may have come from that source but there was no evidence that the use of creek gravel caused that condition in the floor. Plaintiff would have been entitled to an instruction to the effect that if the jury should find that the leaks were caused by the body of the floor becoming soft and not from the effects of the heat of the sun, then plaintiff should recover but an instruction of that kind was not asked. Defendant’s instructions were based on two propositions : One, that if creek gravel was substituted for crushed stone over his objection and that such substitution caused the leaks, plaintiff could not recover. As already said, this was erroneous because there was no evidence on which to base it. It was also erroneous because the substitution, if properly directed by the city engineer, would be no defense. If the contractor was not willing to allow his guarantee to cover the use of creek gravel, he should not only have protested but should have refused to use it unless he was relieved from his guaranty. As we view this case there was but one defense open to defendants and that was the negligence of plaintiff in allowing the reservoir to remain empty until the heat of the sun caused the finish coat of the floor of the reservoir to crack and pull loose from the body of the floor. If the leaks were caused in that way, the plaintiff cannot recover. If the leaks were caused by the use of improper material or by bad workmanship, then plaintiff could recover. The defendants were, there *429 fore, given tlie benefit of one defense that was not open to them on the facts shown in the record before ns. The judgment will' be reversed and the cause remanded. Farrington and Bradley, JJ., concur.