The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1904-04-01
REPLY is FILED TODAY
Barber Asphalt Paving Company Has
the Last Say.
Qualities Some of the Statements in
the City's Answer.
Amendment of Paving Contract Mas to
company's Detriment.
Issues in Patterson Case Not Same as
IN Present Suit.
From MONDAYS Daily.

From Mondays Daily.
The Barber Asphalt Paving company
late this afternoon filed its reply to the
answer of the city in its action to re-
cover for the paving, curbing, guttering
and bouleyarding of Broad street. 1t is
signed by Howe, Taylor & Mitchell, for
the plaintiff.
The plaintiff denies any knowledge or
information sufficient to form belief
as to the number of property owners
making objection or remonstrance against
the improvement of Broad street, and al
leges that prior to the ordering of the
improvement a large number of the prop
erty owners were in favor of the i'm
provement and on various occasions urg-
ed upon the officers of the city that the
improvement be made.
The plaintiff admits that the specifca-
lions were amended from time to time,
but alleges that the specifications upon
which the contract was awarded to the
plaintiff were adopted by the defendant
in the form alleged in the complaint,
prior to the advertising for proposals for
doing the work.
The plaintiff admits that there were
other firms engaged in paving streets
with asphalt other than the kind named
in the specifications, but it alleges that
the other kinds were of inferior quality
to the varieties named in the specifca-
tions, and were not so suitable for pay
ing purposes. That before adopting the
Specifications, the council and board of
public works made a full and fair in
vestigation into the merits of various
kinds of asphalt, and decided that the
kind named in the specifications was SUI
perior in quality to other asphalts.
The plaintiff admits that change was
made in the contract after the bids had
been received, but it alleges that the
change in the method of payment was a
decided disadvantage to the plaintiff and
to its detriment, and was so understood
to be by the plaintiff and defendant at
the time the change was made. None of
the other changes were substantial or
material or for the benefit of the plain
tiff, or relieved it from any condition of
the contract, onerous or otherwise.
The plaintiff alleges that at the time
of the filing of the decision of the dis
trict court in the Diamond injunction
case, July 10th, 1902, it had completed
the greater portion of the work under
the contract, except the portion between
Warren and Lincoln streets, and that the
defendant and its officers then failed and
neglected to perform the various acts and
duties to be performed by it under the
contract upon that portion of Broad
street between Warren and Lincoln
streets, such as laying out the work,
setting the stakes, examining and ap-
proving the materials, etc., and that by
reason of said failure, the plaintiff was
unable to go on with the work between
Warren and Lincoln street, although at
all times ready and willing to perform
such work. The council afterwards pass
ed the resolution cancelling that part of
the contract, and the plaintiff consented
thereto.
Referring to the Patterson injunction
suit the reply says that the issues in
said action and the questions of law
arising therein, are wholly different from
those involved in the present action, and
determination of the issues involved in
the Patterson case in the district court
would not in any manner determine the
questions arising in the present case.
The plaintiffs in the Patterson case have
failed and neglected to prosecute the
same until after the summons was serv-
ed in the present action.