Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1891-08-20
No Claim for Payment Can Be Enforced
Until Two Years After the Work
Has Been Finished.
Numerous Contracts Have Passed the Limit and Fay
ments Can Be Forced.

|
up serious questions concerning the con
tracts. The Court, however, ha
found that the new act o
1891, which is decided constitutional
supplies what was lost in the killing of tn,
old act and the provisions of the contract
stand as before. One of the provisions o
such contracts has always been that con
tractors cannot force the city to pay then
until two years after the completion of tn,
work. After the Supreme Court killed thu
street act of 1887 some contractors con
cluded that this provision existed no more
City officials argued otherwise and in max
ing their calculations on settling up stree
matters figured according to this conclusion
The Court has sustained their view of tn,
case.
JUDGE STOVES DECISION.
Judge Stowe yesterday handed down al
| opinion in the suit of Evan Jones against
the city of Pittsburg The case is an impor
tant one and involves over 100000. Jone:
was the contractor for the Thirty-third
street sewer, which has been completed. He
sued to recover for the amount due for the
work performed. The city did not want to
pay until the assessments had been obtained
| from the property holders. The opinion is
on a rule for Judgment for want of sufficient
affidavit of defense. 1t is as follows:
"The contract with defendant, upon
which suit is brought, was made in accord
ance with the provisions of an ordinance of
the city of Pittsburg, approved March 81,
1SSs, enacted by virtue and under the author
ity of the general powers as a municipal
corporation and the act of Assembly of jan
uary 6, lS6S, entitled AN act concerning
streets and sewers in she city of Pittsburg
and its several supplements
This ordinance provided that the cost
and expense of the improvement and the
damages, etc, arising therefrom should be
assessed and collected in accordance with
an act OF Assembly approved June II, 1887,
since declared unconstitutional and void
"The third section of the ordinance pro-
vides,!to wit: For the purpose of paying the
balance due on the contracts to be awarded
under the provisions of this ordinance after
applying the assessment upon private prop
erty collected within two wears from the
completion of the work done under contract
to the payment of the same and sufficient
sum is hereby appropriated to pay said bal
ance with interest.
"The first question now is: What is the
proper Interpretation of tie contract in
suit? The contract, upon its face provides
That the plaintiff shall not be entitled to
of his work or material until the same shall
have been fully completed in the manner
set forth In the agreement, etc, and until
the assessment for the cost of the work shall
have been made and collected under the
laws an regulations governing the same
This, taken without Qualificnt ton, would
prevent suits against the city until the last
dollar of the assessment for costs, etc, had
been collected.
MEANING OF THE ORDINANCE.
tract was made, and which must be taken
the basis for it, shows that it was never
intended that such a construction should be
put upon the agreement since IL specifically
provides for the payment by the city for SO
much as may be uncOllected by assessment
within two years from the completion of the
work. The agreement must then be con-
strued, and l am informed such has been the
constant practice, to mean that the CITY is
not bound to pay the contractor for two
years from the completion of his work and
that at the end of that time the obligation
to pay arises and suit may be brought il it
fails TO do so.
This Interpretation relieves this contract
from all complications arising out of the
unconstitutlonality of the act of 1877. The
ordinance authorizing the improvement
was incontestably valid; the contract pro-
vided under its proper construction for two
years credit to the city. The means sup
posed to be provided for the protec-
tion of the city by imposing the
erty holders have failed, but the con
tractor is not affected by that His contract
with the city that he must be paid in two
years holds good, and the question of how
the city Is to indemnify itself is one most
involved in his contract.
"But this view of the case, while entirely
satisfactory to me, does not altogether meet
the argument of plaintiffs attorney His
first position is that the city is bound imme-
diately to pay the plaintiffs claim because
the contract makes the act OF 1857 material
part of the agreement, and that ha wing been
stricken out because of its .unconstitution-
ality, the agreement stands now precisely
as ii no reference was made to It, and there
fore, If that portion of the agreement was
stricken out nothing would remain post
poning the right of action. But 1t is mani
fest that such a construction would be in
violation of the clearly expressed intent
of both parties at the time the agree
ment was made. 1t would, indeed
be as inequitable so as to conclue as it
would be to mold that plaintiff could not re-
cover al all because he had agreed to get
his pay out of certain assessments, which,
under the law, could not be made 1t is true
that if the ordinance had made no reference
to payment OF the contractor at any time
and the contract stood in relation to the
time of payment as it does, dependent upon
assessment and collection, and no means
had been provided by which the costs etc.
might be collected, equity would give the
right to the present action, simply because
any other view would be taut, amount to
saying that plaintiff never could enforce his
clulln iiSalnst tne cltN.
LITERAL TERMS OF THE CONTRACT.
"But this conclusion would not only ignore
the provision in the ordinance for payments
in two years, but also the act of Assembly of
Nav 10. 1891 authorizing the assessment and
collection of costs etc, arising out of the
making of public improvements referred to
in the act. If we throw aside the ordinance
and the act OF Assembly we find that the
literal terms of plaintiffs contract would
all
was collected by the city. The means by
which this was to be done had failed, and
the city could never collect 1t unless addi-
tional legislation were had to that end. What
then? Must the plaintiff be forever de-
barred from collecting his money? Both
reason and authority say no. As the origi-
mai agreement cannot be carried out in
terms because of a mutual mistake as to the
validity of the act of 1857, the plaintiff NAV
recover the contract price for his work and
material as nearly upon the same terms and
conditions as circumstances will admit. If
no credit was given the city except such as
arose out of the act of Assembly itself, l
could see no difficulty in giving the con-
tractor his right of action Immediately, be-
cause of the impossibility of 9TH
to this extent / fully agree with
plaintiffs counsel. But whenever subse- |
quent Legislation places both in substantially
the same condition that they thought they |
occupied when the contract was made and |
upon the basis of which IL was entered into |
the argument fails. There does not seem |
any logic to be either a legal or equitable |
reason why the contract should not be en-
forced according to the original understand !
ing as to time OF payment.
f'The net of 1891 has met this difficulty in |
this and all similar cases by giving an am
pie and complete method for assessing and |
collecting the cost etc, of the street i'm
provments referred to therein, and there is
Injustice done the contractor in holding that
act as substituted in their agreement for the
xl,N1l I, 1N.,FI