The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1892-10-01

oversee and inspect the work, and after
each block of it had been completed he was
| to make an estimate OF it for
the city council to advance money
on it. The first estimate he made
took in several blocks and the city council
| approved it, but for want of funds they
issued no money to Mr.. Wilson. Two
more estimates was made by the city engi-
neer and they were approved by the city
council, but again the city was short of
| money and, of course, none was given Mr..
Wilson, his bill having now amounted TO
some s63, 600 Soon after about 81. 900 more
was completed, but this time no estimate
was made, for it had developed in the
meantime that the paving was no good,
having crumbied to its original elements
in several places. Then the trouble began
aud the city refused to pay for the work.
In July of 1891 Robert C. Wilson brought
suit in the United States court for the
amount due him through his attorneys,
Brooks & Coffin of this city, setting forth the
terms of the contract, etc. The attorneys
for the city filed an answer, setting forth
the worthlessness of the work done, etc.
To this Brooks and Coffin entered de-
murrer acknowledging every allegation
the city made but still insisting that Will
son was entitled to his money under the
contract, whether the pavement was worth
Il dollar or not. They set forth the terms
of the contract showing that the work was
under the supervision of the city engineer,
with almost unlimited power in the
premises, and alleging that it was the
city's fault, by reason thereof, that the
work was not performed differently. For
six long months Mr.. Coffin burned
the midnight oil preparing his
argument in the case which
is very vOlumneous and which
quotes almost every authority under the
sun on the subject in support of his side
of the case. The other side was not idle
either. In fact Judge Williams compli-
mented both sides on the work done. He
said he never saw in his official career a
stronger contract than that existing be-
tween the city and Robert l.. Wilson and
expressed his opinion that the interests of
the city were thoroughly protected by it.
He Was especially profuse in his compli-
ments to Mr. Coffin. He said that during
his entire career as q lawyer and on the
bench he never heard a clearer or more
intelligent argument than that made by
Mr.. Coffin, or one that embraced such a
any subject. He then proceeded to
give his opinion, which sus-
tains the demurrer Mr.. Vermillion,
on behalf of the city, asked for forty days
to amend his answer, and the court grant
ed it, intimating at the same time that it
is very difficult matter to make any
change that would lift the burden of liza
bility from the city. The following is the
Judges decision, complete, which explains
itself:
In the district court of the United
States, in and for the district of Kansas
Second division.
In the case of Wilson VS.. the city of
Wichita.
Opinion of Judge Williams on the de-
murrer of plaintiff to the answer OF de-
PENDANT:
This is an action brought by Wilson to
recover from the city of Wichita the price
per contract for paving Douglas avenue in
the city of Wichita. The plaintif by
proper petition alleges the contract en-
tered into, which is voluminous and very |
carefully drawn, especially in the interests
of the city of Wichita. The defendant,
the city of Wichita. files its answer setting !
up as defense that the paving done under |
the contract was not in accordance with |
the terms of the contract. To this answer i
the plaintiff demurs; that is. to certain |
paragraphs of the answer. Ii seems by |
the pIeadings in the case that the |
city had its engineer, and in the |
wording of the contract there are
various specifications as to the power and |
the authority of the engineer In supervIs |
ing the work from time TO time, and 1t Is
sufficient TO say here that these powers are
large and extensive and are particularly |
set up in the petition. The engineer had |!
the right to reject any part OF the work. |
He had a right to require any part OF 1t TO |
be torn up and relaId; he had right TO
refuse to accept any part OF 1t; lie had |
right to require any workman not doing |
satisfactory work to be discharged. la |
short lie mad full power to condemn any OF |
the work. the materials, or any part not |
in accordance with the specifications, and |
require the contractor 10 remove any sucn |
portion, aud relay it.
According to the contract the engineer |
could accept o, reject materials, and the !
decision of the engineer was TO be final as |
to the quality of the work, or the material. |
The contractor was required to permit |
the engineer 10 inspect ali material.
Quoting from the contract, at section 81. |
this language occurs: TO prevent dis !
putes and litigation, the city engineer /
shall in ali cases, determine the amount or !
quality. of the several kinds OF work !
which are 10 be paid for, and he shall de- |
eide all questions which shall arise reia- /
tive to the execution of the contract on /
the part of the contractor, and Eis esti-
mates and decisions shall be final and con- |
elusive"
IL appears by the pleadines that three !
of this work, amounting IL /
the aggregate to S.. 90. were by the |
engineer accepted and reported to tne city /
aud by the city council approved. /
The certificates of the city engineer being /.
in all things confirmed oy the city council |
Ii Is coDtended by the counsel for the I
piaintln III his action upon tnis demurrer,
that the answer Is insufficient because /
setting up the contract and the work done, !
admitting the certificate OF the euginser.
the action of the city council IN 1
ratifyiug the action of the City engineer, 1
that II Is no answer TO SAY Dow that the |
work was not we'll done; hence the de- /
murreT. Ine current OF authorities IS ua- /
upon this point Ia supper: |
OF this demurrer. In fact SO far a. /
that Is concerned the authorities are al |
most unanimous in saying that The action !
OF the aroiter, or the engineer. selected by I
the parties 10 such d contract "a this. - I
final 1t IS res adjad!cAfa- Y Is coOcl IL !
slve. And the court would find no diff
Guilty at all IL finding this demurrer well (
taken, except for another paragraph Ia 4
this contract Quoting now from section i
- OF the contract: 1T Il hereby expressly /
that the city OF wicesta, or /
any OF It's officers. shall not be prsciuded. |
or rstopprd by any estimate, return or /
certificate mAde or given 6y tue city sogi- |