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

| neer, or other officers of the city. from at
| any time showing the correct amount and
! character of the work which shall have
been done, and materials which shall have
been furnished by the contractors" The
contention on the part OF the city is that
under this provision of the contract that
it matters not what the city engineer may
have done. nor what has heretofore
| been the action of the city council: that it
| still remains open for the city authorities,
or any member CT the city council. or off,
Ger OF toe city, AT any time To show that
the material furnished was Eot good and
the work not properly done. 1t is well
established and know rule of law in con-
STRUNG contracts that all parts of the con-
tract, that is, that the contract must be SO
construed as to give efficacy to all parts of
the contract. What must be said then of
the law and that rule of the law in rela-
tion TO this forty-th.rd section of this con-
tract. Is the contention of the city fair
that at any time il shall have the right to
reject this work. Mindful now that the
city council has already acted upon the re-
port OF the engineer in regular meeting
of the city council. having taken up the
report of the engineer, ratified and COLI
tifmed is.
Have they not. in the construction of
this contract concluded the matter, and
have they not had their time to object to
any of the work done? l can see no other
way OF constituting this contract so that all
parts Of it shall stand. Shall they have
trial aad re-triai? Shall il be open for all
time? Have not the city council had their
day and opportunity to object to the re-
port Of the engineer before they ratified it?
Or shall they ratify it and years after
wards rs the attorney for the city con-
tends, at any time, take the matter up
and examine the work. and. pending that
examination and pending that taking up,
H..nr no. ut Trn, l.f..
pay7 That kind OF construction OF this
contract would work hardship 10 this
contract or that does not conform to my
ideas of the administration of law. 80
l take it that that provision of this con-
tract is fulfilled, Is carried out; for the
city authorities have had their day, have
acted upon the contract aud acted upon
the report of the engineer.
Bearing in mind, also, that there is not
in the answer any allegation Of fraud on
the part of the contractor, or Of collision
on the part OF the city engineer, the con-
tract is relieved from another difficulty.
1t is often the case that contractors palm
off on cities worthless materials, under
certain names, or patent. And it first
occurred to the court that that was the
case here. but not SO. Although it went
by certain name, this pavement was to
be laid SO that the city engineer could at
all times inspect its character, and 1t is
conclusive against the city II he reports
that he has examined it, and approved It.
There is in my mind now no question but
what the answer Is open to the objection
pointed out by the counsel in support OF
this demurrer, and as to this portion the
matter stands as though no answer had
been filed,
The other portion, or the last estimate
amounting to about $1,000, has not been
made by the city engineer and not accepted
by the city. This part of the case can be
tried upon its merits. There is no demur-
rer to that part of the answer.
The demurrer to the answer to the para
graph pointed out will be sustained.