Burke v. City of Kansas

Gill, J. At the triai of this action before the circuit court the' plaintiff had a verdict and judgment for fifteen hundred dollars. The defendant filed its — 575 — motions for a new trial and, in arrest, and upon hearing and consideration the circuit court sustained the same, incorporating in the record the reasons therefor, to-wit • “That on the petition and facts as presented by plaintiff in the cause, the city is not liable.” To this action exception was saved and the plaintiff refused further to prosecute his suit, a final judgment was entered and the plaintiff now seeks a reversal, alleging as error the action of the court in granting a new trial. I. Respondent’s counsel contend that to warrant a reversal of this cause it is incumbent on the plaintiff to show that the new trial could not have been legally and properly granted for either of the numerous reasons set out in the motions for new trial or in arrest. In other words the contention is, “ that the statement, that the motions were sustained, is in itself a complete entry, and the words showing a reason for sustaining them are mere surplusage,” etc. We think the city counsellor is in error in this position as applied to this cause. Beyond the consideration of any statute we quote the apt words of plaintiff’s counsel, in his argument in reply, wherein-the reasons of public policy are invoked. “Again, public policy favors the appellant’s contention. The sharpening of issues, and throwing out mock combats, is a blessing to courts, litigants and the public. The defendant, in this very case, advances twenty-four reasons for defeating the plaintiff, and if appellant must take them up, seriatim and with a serious face, not only must all the record be printed in this and every other case (that is appealed in this -way), but a law book must be written to cover the field of jurisprudence, and sent up as a brief.” The assignment of reasons for sustaining a motion for new trial is not surplusage, as contended by defendant’s counsel, but the court, in so doing, obeyed the direction of positive law. By the act approved March 22, 1887, it is in terms provided that “every order allowing a new trial shall — 576 — specify of record the ground or grounds on which said new trial is granted.” Laws of 1887, p. 230. It is a matter of regret that we have not other rules and statutes tending towards the “sharpening of issues and throwing out mock combats.” We proceed now to review the action of the trial court in sustaining the motions for new trial and in arrest in the cause at bar, on the grounds “that on the petition and facts as presented by plaintiff in the cause, the city (defendant) is not liable.” II. This action of the trial court was, in effect, sustaining a demurrer to plaintiff’s case as made at the close of his evidence. Although the court was a little tardy — having waited until the case was presented on both sides and a verdict rendered. Still the trial court has declared that, on his petition and evidence adduced, the plaintiff was not entitled to recover. The question is, did the pleadings and the facts presented by the plaintiff warrant a recovery ? The defendant on March 21, 1882, entered into a "written contract with the plaintiff’s assignor. By this contract the plaintiff’s assignor was to build a district sewer “ according to such directions as the city engineer of said City of Kansas may from time to time gire in superintending the construction of the work, and according to the plans and specifications on file in the office of the said city engineer, prepared for the letting of the contract for such work.” Said contract was confirmed by the defendant, by an ordinance, on the next day. Said contract further states: “The City of Kansas hereby expressly reserves to her city engineer the right to refuse or reject, at any time during the progress or at the completion of the job, any work done or material furnished, which in his opinion may not be in strict compliance with this agreement; and also expressly reserves to her city engineer the power of suspending or — 577 — annulling this contract, or suspending the doing of the work thereunder, at any time, for any failure on the part of said party of the first part to fulfill the same, or other good cause, or for the reason that the interest of said city may demand such annulment or suspension ; and any action of the city engineer, in suspending or annulling this contract, or suspending the doing of the work thereunder, and Ms decision as to the existence or cause for such annulment or suspension shall be conclusive as to the existence of such cause or reason in any controversy or litigation between the parties hereto or others claiming under them.” Said contract states: “ The said party of the first part shall discharge from the work any workman who shall disobey any direction of the city engineer, as to the workmanship or material therefor, given in superintending the work.” Said contract states : “ It is also expressly agreed that the passage of said ordinance and the doing of said work, without any petition or any proper petition therefor, shall not render the city liable to pay, directly or indirectly, for said work, or any part thereof, otherwise than by the issue of certified bills of assessment; and said party of the first part shall assume all risks as to the validity or invalidity of such certified bills of assessment, and take the same without recourse against the City of Kansas in any event.” Said contract states . “ This contract shall be subjected to the existing charter and ordinances of the City of Kansas, and subject to the power of the common council of said city to approve or reject the same, and shall not bind until so approved.” The nature of the “plans and specifications on file in the office of the city engineer,” referred to in the foregoing contract, is exposed by the evidence of engineer Donnelly, in answer to questions by counsel at the trial, as follows: — 578 — “ A. When the plan of a sewer was prepared by the engineer for any particular district, the engineer first prepared a plan showing a sketch of the land to be taxed, or the district, as we call it, and the location, depth and number of sewers in that district. That being recommended to the council, they passed an ordinance providing for the creation of that sewer district and the construction of the sewer, which was usually created according to the plans first prepared. Then the contract and specifications both referred to that plan and were based upon it. “ Q. So that, to make an intelligent bid the contractor came to the city engineer’s office and looked at the profile, which showed not only the street itself, but the depth, length and each kind of pipe, or brick, how many man-holes, how many catch-basins, etc. ? “ A. Yes, sir ; every thing was stated on the plans. “ Q. Then, Mr. Donnelly, knowing these plans and what was in the office at that time, explain to the jury what extra information the contractor would have when he came to make a bid, if any, from what the book shows and the specifications, so as to make a bid on the work in question ? ‘ ‘ A. He would have the information that those plans show. He would have the depth at every man-hole and every place indicating the depth of the sewer. “ Q. Also the average cut and the average kind of pipe? “ A. Yes, sir ; he would see everything. It showed a vertical section of the line of the sewer, which would show the depth and, as far as we could tell, the material which would be encountered.” The evidence is uncontradioted, that the plans and specifications, provided for the work in question, were as perfect in detail as defined by the evidence of witness Donnelly. — 579 — Such plans and specifications gave intelligently and correctly, among other matters, the depth of the trenches to be dug throughout the entire length of the proposed sewer. Now it seems, as is usual in the prosecution of such public work at Kansas City, the engineer detailed one Eelix, an assistant, to look after the construction of the sewer. The work was being prosecuted, and some six hundred feet of trenches had been dug, and some pipe laid in place, when there was a change in engineers. Felix was removed and Baker, another assistant city, engineer, was substituted in charge of the work. Mr. Baker very soon discovered that the plaintiff was not laying the sewer pipes at the proper depth, that the trenches were not so deep as the plans and specifications provided, ahd thereupon plaintiff was required to take up the pipes already placed and sink the trenches deeper, which was done ; and for this extra cost, in re-constructing this portion of the sewer, this action was brought. It is unquestionable that the portion of the sewer thus re-constructed had not been placed so deep in the ground as the plans and specifications for the work in the engineer’s office required. However, the plaintiff claims, and produced evidence tending to show, that such construction was placed just the depth required by Felix, the assistant engineer. He insists that, as he followed the instructions of the engineer in digging the sewer trench, he was complying with the terms of the contract, and if instructed wrongfully, and he has been thereby injured, he ought to recover by reason of such wrong directions. This brings us now face to face with the difficult question of this case. The principal controversy arises as to what are the contractual obligations of the plaintiff and defendant under the provisions of the agreement whereby the contractor agrees with the City of Kansas ‘4 to do and complete said work * * * according to such directions as the city engineer may from, time to — 580 — time give in superintending the construction of the worTc, and according to the plans and specifications on file in the office of said city engineer prepared for the letting of the contract for such w orJcffi etc. How far now shall the contractor go in following the directions of the city engineer ? Was the plaintiff in duty bound to pursue the instructions of the city engineer, even though in so doing he depart from the the plans and specifications, which he contracted to carry out ? We think not. It is a well-known rule that in the construction of any written contract, it should be so construed as to harmonize, if possible, all its provisions and so as to avoid all conflicts. The undertaking of the plaintiff in this contract was that he would construct the sewer as stipulated in the plans and specifications. The plans • and specifications were to be followed just as zealously as if incorporated in the body of the agreement. Those plans and specifications provided the depth at which the sewer should be placed, just as they provided for the size of the pipes to be used. If then the engineer could depart from the terms of the contract as to the depth of the sewer, why could he not substitute a smaller for a larger sewer pipe, permit, for an example, a twelve-inch for an eighteen-inch sewer pipe, when the contract required the larger? This would admit the power in the engineer, while merely superintending the construction of the work, to change, or modify, the contract. This the engineer cannot do. And, as he cannot change or modify the contract as to the one stipulation therein relating as to the size of the pipe used, it follows that he cannot change its terms as to the depth at which it shall be placed. “According to such directions, therefore, as the city engineer may from time to time give in superintending the construction of the work” should be construed to mean such directions that he may give looking to a completion of the work according to the plans and — 581 — specifications, and not to mean that tlie engineer may give directions for an improvement in manner different from that provided in the plans and specifications. It is made the duty of the engineer under the contract to see that the contract is complied with, not violated. At this point of construction of this sewer the plaintiff had agreed to sink the sewer to a certain grade beneath the surface, and he was bound to comply with that agreement, unless relieved by a new agreement emanating from an authority capable of making such a contract. The plaintiff, in the end, did under the contract just as he agreed to do. He placed the sewer at the grade he agreed, in the first place, it should be placed, and received his pay therefor, in tax-bills, as the law and the contract provided. We conclude, therefore, as was decided by the circuit co urt, ‘ ‘ that upon the petition and the facts, as presented by the plaintiff in the cause, the defendant city is not liable.” For an authority in point see Bonesteele v. Mayor, 22 N. Y. 162. Judgment affirmed. The other judges concur.