The Montgomery advertiser., 1903-01-16
JUDGE JONES GIVES OPINION
 IN THE TALLASSEE DAM CASE

| The exhibit to the contract shows that this view is largely mistaken, since the gem ersl terms and outline of the work were embodied in the exhibit which is made | part of the contract. What was left un-
 certain, was the detailed plans. and such
 interference with the work as the con- tract authorized the engineer to under take, during it's progress.
 However much force should be given | to this consideration in ordinary cases. it seems to the court that the facts reeit- ! ed in the bill show that 1t can have no | force in this instance. Here, the contract after it's execution had begun, was modi. | fled by consent of employer and contrac- | tor. departing in certain matters from the original plan and specifications. The contractors knew positively, when they l agreed to the change. if not before, the l precise thing to be done, and necessarily | what risk they would assume If such l change in plans was effected, and the otf- CT stipulations of the contract concerning i floods and accidents were left unchanged Tho parties as the bill shows, modified the
 e entract in this, particular only. and left it in full force as to all the other terms of the contract, as they stood before the | modification, regarding the risk from feeds. damage and accident.
 l The parties to this contract all reside l in distant States from the place where | it was to be performed. The presump- tion would be. in the absence of anything | in the bill to the contrary, that the con- 1 tractors were at least experienced in this | kind of work. It is nowhere alleged that l they were deceived, or imposed upon, i, or that there was any mistake. Some | thing of this sort would have to be shown | if this bill had been filed to reform the contract. so as to limit the scope of the l agreements in the contract, as counsel for | complaipants contend they should be ! limited. Such a bill, It seems to the | court could not be maintained on the | facts fhere alleged Concurrence in the views of counsel for compliments as to | the proper meaning of the terms of the contract as to responsibility for the ef- feet of floods upon the dam, would
 amount to reformation of it in that respect.
 1 Without discussing the numerous a,i- thorities cited. it suffices to say that the
 employer in this case. did not warrant l that the work during It's progress and | before completion would withstand the 1 effect of the floods and stoRm, but on the contrary, the contractor agreed to | take precautions to prevent harm from these causes, and to bear | the risk of loss in these eontin- I genhies. Under such circumstances, the court cannot without making a new con
 tract, however hard may the results of | the modified contract, absolve the con- l tractor from duties and obligations which | he undertook. When the contract was
 modified. whatever may have been the
 condition of things heretofore each party | knew exactly what the plan was, what \ risk was occasioned thereby, and who | would have to bear the loss in the con- | tingencies named. If the contractors de- ' sired to avoid these risks they should have embodied proper stipulations In the
 modified contract. They did not do
 this, but left the contract as 1t originally
 stood in all these particulars. It seems | to the court that after the modification of | the contract, at least, the nieployer did not warrant anything either expressly or | impiiedly as to floods and accidents, save
 in the matter of delays and tho time when
 the partial payments would be made upon
 the work during its execution. It is
 not shown by the bill that the portion | of the dam which was washed away. | failed or weakened by reason of any in- | herent defect in the materials or plans, | It was pushed dowh by outside forces | floods and the head of water 1t had | collected. It withstood a flood which went three feet over the dam, and suc- I | over the crest of the dam, If any in ference could be indulged in view of the facts as to this stated In the bill, 1t would be not that the plan was defec- l tive, but that the exposure of the surface | of the dam to these floods before it was | dry, and before the cement was placed upon the down stream face of the dam. was the cause of the disaster. If this
 was the case. the contractor had agreed | to protect the dam as to these very | things. and to secure the work against l water while the dam was in an unflnish- ed state. and he could not visit his fail
 ure in that respect upon the employer. If does not seem to the court that there has been a substantial performance of the contract. The thing to be done here
 was to complete a dain which would back l up the water of the river so that 1t could be utilized for power. When there Is a | large gap left in the dam so that, with- l out completion. the water will not accu- l late above, 1t is not substantial conn pllance with the contract. In that event, | 1t is not a dam, in the meaning of the contract. Without the losing of tho gap,
 the thing contracted for has not been
 substantially performed or delivered. This
 renders it unnecessary to consider wheth- CT the doctrine of substantial nerformance
 
 flciency of performance to the determl- nation of an engineer or other person.
 and the work has not been completed and
 accepted. That the work agreed to be
 done was not impossible of performance is quite apparent As the employer was
 under no obligation to replace the de-
 stroyed portions of the dam, the refusal
 on his part to do so did not authorize
 the contractor to abandon the work. The
 refusal to complete the contract was
 wrongful. and there can be no recovery
 either upon the contract or upon quan-
 tuh merult. save, perhaps, to the ex-
 tent that the employer received benefits from the work done, over and above the damage sustained by him from the abandonment of the contract. The par
 tial payments made were for the con-
 yenience Of tine contractor, and per- centage of the work on every single par eel for which partial payments were made. was retained as security for the eompIetion of the whole contract. There is nothing in the contract which obliged the employer to accept anything less than the full completion of the contract as "a compliance with its terms. See Der mott Y. Jones. Wall, l; Simpson v. U. S.. 172 '. s. S72: U. s. V. Shoot, 1b Wall. 76. The case may be hard one mon the eomplalnants. but hard eases often make shipwreek of the law. After careful examination of the authorities and consideration oR the able arguments of counsel, the court is of the opinion that the bill cannot be maintained, and eounael for respondents may prepare ae.raa auataining the demurrers.