The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1904-03-11

| gaged, as is plalntl1f, IN the paving OF
streets in the various cities of the Uni
ted States, and said corporation then,
| and at all times thereafter, had mo-
nopoly of the kind of asphalt last men
toned, and defendant alleges on informa-
| ton and belief that plaintiff and the
said Bermudez Asphalt company then
| and at all times thereafter had a work
| ing agreement between themselves in re-
lation to bids upon work, and in relation
to the control of the two kinds of as
phalt above mentioned and specified in
said specifications, and at all times con-
| certed and conspired together to control
| and monopolize the same, and prevent
free and fair competition in relation to
the bidding upon work calling for asphalt
of either kind above mentioned. That
| there were and are a large number OF
other persons, firms and corporations in
| the United States seeking contracts for
work of the character of the improve
ment in question, who could procure and
use asphalt other than the kind specified
in said specifications, who were by reason
of the facts aforesaid deferred from bid
! ding upon said work. And said specifca
| tions further provided that the contract
L VI uluSU dSSuIuG jill ilShO VI uCloyo lC-
sulting from the stoppage of said work
by reason of any injunction or legal pro-
ceedings whatever brought against the
city of Mankato, and releasing the city
from any liability on account of delay or
stoppage of said work by such injunction
or legal proceedings. And said specifica-
lions, reference being made thereto, were
otherwise arbitrary, illegal and tended
to restrain and prevent free and fair
competition, and tended to and did in
| crease the cost of said improvement very
| materially, all which was at all times
well known to plaintiff.
8. That the specifications upon which
bids were asked, being exhibit "A,' at
tached to the complaint, contained the
following provision: Payment for said
| Improvements shall be made not earlier
than one hundred and twenty days after
the completion and acceptance by the
board of public works of said work, out
of moneys received from the assessment,
| duly made for said improvement in ac-
cordance with the charter of said city,
or such other moneys as may be set
! aside by the common council of said city
for the payment of same and if at the
expiration of the said one hundred and
| twenty days after the acceptance of the
said contract there is not sufficient mon
{ eny in the treasury of said city apple
I able to the payment of said contract,
certificates of Indebtedness bearing in
terest at the rate of six per cent per
| annum may be issued in payment of
any sum due said contractor in accord
| ance with the provisions of Sec. % of
Sub chapter of Chapter At Special
Laws of 1891, of the State of Mime
sota." That after bids had been asked
and received, and without e-advertising
| for additional bids, and with the knowl-
edge, acquiescence and at the request of
plaintiff said specifications were changed
by striking out said provision in full and
| inserting in lieu thereof the following
provision:
"The payment for said work to be
| made after the completion of the same
and acceptance by the board of public
| works of said city out of money law
fully raised by special assessment upon
real estate and property benefited by
| said improvement other than real estate
| and property belonging to the said city
| Of Mankato"
That the contract for the doing of said
work as hereinafter set forth, contained
| and was executed in conformity with the
foregoing alteration That the altera-
ton aforesaid was arbitrarily and I'M
| lawfully made, was of substantial and
| material nature, imposed a burden and
disadvantage upon defendant not con-
tanned in the specifications upon which
| bids were obtained, and conferred upon
plaintiff a material and substantial ben
eft and advantage not contained in the
original specifications, and which was not
offered to other bidders. That the esti-
mated cost of said improvement was up
wards of fifty thousand dollars, and by
such change, plaintiff, among other ad-
vantages derived from the change, was
thus enabled to demand and receive its
money at least one hundred twenty
days earlier than under the specifications
upon which bids were asked. That such
change was made and the bid of plaintiff
accepted at the same meeting and at
the same time, all of which was then
well known to plaintiff.
g. That the specifications upon which
bids were asked and obtained as afore-
said, contained the following provision:
''The contractor will be required to
keep the same in good and sufficient re-
pair for period of ten years from date
of acceptance of the board of public
works, repairing the pavement whenever
settlements or Irregularities causing a
variation in the surface of three-eights
of an inch OF over within the length of
four foot straight edge or any cracks
of three lights of an inch or over in
width, or which show disintegration from
any cause whatever, occur and at the end
of said period of ten years, to turn said
pavement over to said city, in good or
der and condition.
If during that period it is found that
the pavement is defective, from over
burning or improper mixing of material,
or any other cause, or that the work has
been done in an unskillful manner, the
contractor shall at his own cost and
expense, upon an order of the board of
public works, or other proper authority,
entirely remove any defective portion of
the pavement, and replace the same to !
the satisfaction of the said board of pub |
lie works, or other proper authority"
That on the 23rd day of April, 1902, |
the board of public works at meeting |
thereof, accepted the bid of plaintiff for |
the doing of the work in question, a
copy of which is attached to the COM
plant, and marked exhibit 3d." That :
said bid provided for the use of Trinidad
Pitch Lake Asphalt, the only kind that
could be used under the formula contain
ed in the specifications, and upon the ac
ceptance thereof contract was prepared,
a copy of which is attached to the COM
plant and marked exhibit &C." which
contract was thereupon entered into and
executed. That in the making of said
contract, said Specifications were further
modified and altered by inserting in the
contract in the provision aforesaid the
word "preventable" where the same now
occurs therein. That the specifications
so amended were not offered to other