New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-07-21

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paid by the year, and that whenever any
part or the whole of the bridges at the in
tersectiOns of streets and over the drainage
canals of the city, now in existence, OF
which may hereafter be built, shall be 90
rotton and decayed az to require to be built
anew, the contractors shall be bound to
build the same anew without extra cOmpen
sation and in the manner here below ex
| planned for the construction of new bridges.
Under the term bridges" street crossings
seem to be included.
These stipulations must be held in mind
in considering the two principal items Of
account sued on by plaintiff, one for $l5, Sa5
for new work, materials, labor, ETC., from
August, 1866, to July 30, 1867, on bridges
and crossings, this being for the time OF Be
LANCER, and the sum Of 81, 500 O5 for like
! work during the incumbencies OF Baker and
Field az Street Commissioners. from July
1867, to July, 1863
| The stipuIations in the contract a. to iron
bars are important, because while the con.
tract is very strict in requiring these to be
used and in demanding that weak ones shall
be replaced by strong and good ones, and
even wooden ones where then in use to be
replaced with iron, there is set up as an ex-
cuse for having, ON the contrary, replaced
iron with wood, that certain officers of the
| city winked at or consented to it, claiming
| There is also bill for $66 60 for iron bars
| furnished to new bridges, though the con-
| tract expressly requires all materials to be
| furnished by the contractor. There is no
| evidence whatever that these stipulatiOns
were ever changed by order of the Council.
The stipulation respecting the annul-
| ment of the contract is that in
case the Common Council be dissatisfied
with the manner in which the work is being
fho (sor,nOu COI,Ocil ahall have
the right to annul the contracts without
putting the contractors in default, etc., and
without indemnity"
The suit of Mulligan results from the fact
that in July, 1868, new administration of
the city began; that the Common Council
became dissatisfied with the way in which
the work was being executed" and did, for
reasons deemed adequate to itself, on
twenty-sixth October, 1865, annul his con-
tract And for this act Indemnity" is de-
manded by Mulligan in heavy damages,
$35, I4O 49, the amount he claims he would
have made had he been allowed to go on
with the work, also other claims for work
which he insists was actually done.
These claims were allowed by the Judge
Of the Sixth District Court, including
claim for 1922 49, for repairs during the
disputed months of July to November, 1865,
$2l98 IA, for deductions made from his pay
orders of Street Commissioner Belanger,
which he had failed to do, $1,000, being ten
per cent retained under the contract ON pay
ments made and subject to forfeiture if the
contract should be abandoned and not fully
carried out. These, and some minor items
depending on the principles involved in the
others, swelled the Judgment rendered in
the Sixth District Court against the city to
81, 5O7 Is.
u. 4 - ii IS
the Sixth District Court seems to have been
chiefly DESTROYS of maintaining his theory,
now ON examination and review i'll another
case, in the Supreme Court, that nOtwith-
standing that the contract says that the
Council may, if it becomes dissatisfied with
the way in which the work is done, annul
contract without indemnity that indem-
nifty must be given, if the dissatisfaction of
others is not equal to that of the Council; a
conclusion which sets aside the express
words of the contract as surplusage.
But the testimony does not seem to justify
the conclusion, that the contract could not
have been Justly annulled. Though Mr..
Mulligan may have tolerably well satisfied
the administration of Street Commissioners
Belanger and Baker, and have done his
work with passable fidelity then. it does not
follow that he continued to do so under that
of Mr. Murphy; and the positive testimony
of the officers of the latter era, under whose
government he came, that his work was
very much neglected, with important speci-
fcatiOns of neglect, must outweigh all such
testimony as merely shows that he worked
well previously, or that Others did not see
any evidence of neglect.
A careful reading of the testimony shows
that there was great neglect of duty during
the months of July, August, September and
October, 1863 however little there might
L I,nc ,,n4<
Justify the annullment of the contract, if
justification were necessary, but carries
with it forfeiture of all other claims under
the contract.
Allusion has already been made to the
substitution of the cheaper wooden for the
iron bars in express violation of tho con
tract. The Street Commissioners, before
Mr.. Murphy, seem to have consented to
this; at least to have winked at it; but they
had no authority SO to do.
The large claims for new work are very
peculiar. Hard pressed as Mulligan seems
to have been for money, onerOus as his con-
tract is said to have been the first year, he
lets bills, made out monthly for an entire
year. from July, 1866, to July 81, 1867, lie
over until the end of that time, and just as
Street Commissioner Belanger is going out
of Office he presents them for approval, and
they are lost or mislaid, being neither ap-
annulled. In like manner the bills for the
next twelve months are not presented, it
would seem, until after the next incumbent
had ceased his incumbency and are ap-
proved by his superintendent Of bridges
after he had ceased to be such.
Yet the plaintiff tells us in his testimony
that he was paid during this time for all
new work ordered by the Council. For this
now sued for, which he says was ordered
sometimes by an individual Councilman and
sometimes by a Deputy Street Commits
sioner verbally, and for which he has ex-
ceedingly few vouchers to show, no gave a
credit to an amount exceeding the first year
by three-fOurths and the second year by half
his pay for REPAIRS though the new work re-
guired all new material.
1t should be recOllected that where old
bridges were to be replaced by new, it was
to be done as repairs. Only when built
where there had been none before, or when
bridges were widened for the additional
width given, was there to be pay as for new
work 1t certainly should have been
proven that not only was the work DONE
but that it was done where there had been
no bridges before and, as required by the
contract, under the orders of the Street
Commissioner, in accordance with lines and
levels furnished by the Surveyor. There is
no evidence that the latter had any knowl- |
edge whatever of these bridges.
The absence of such proof, the bringing
in of bills at years interval, when the ex-
pense was so great, the failure to press them
until the contract is annulled, the in
definiteness of the proof of the
items, though the plaintiff and his
foreman both testify, and the fact
present, and receive pay for all new work
ordered by the Council, would seem to show
conclusiively that this professed new work
was only repairs and therefore not to be |
separately charged.