Ottumwa tri-weekly courier. [volume] (Ottumwa, Iowa) 1903-1916, 1905-05-23
WAS REPAIR WORK
OPINION OF JUDGE PHILIPPE in
THE SECOND STREET Paw.
ING CASE.
Holds That Work Was Not In the Ma.
ture Of ReconstructIon-Va In
Work Did Not Release Surety From
Liability For Repairs.

From Mondays Daily.
The principal question presented is
whether or not the work done by the
city was of the nature of repair or re-
construction" is one of the statements
OF Judge Phillips Of the United States
circuit court of appeals in his opinion
in the case of the American Bonding
company VS.. the city of Ottumwa, the
asphalt paving case in which the de-
cision of the lower court rendering
Judgment in favor Of the city for over
$4,000 was confirmed. W. H. G..
Jaques, who represented the city, re-
ceived a copy of the opinion Saturday
although notice of the decision of the
court was received several days ago
The city contracted with the Assy-
rian Asphalt company in 1898 for the
paving of portion of West Second
street, one of the provisions of the
contract being that the paving was to
be kept in repair for period of seven
years. After repairing the paving
twice, the asphalt company became in
solvent and the bonding company,
surety for the contractor, was notified
the next time the paving needed re-
pairing and paid for the work, costing
about 5000.
Sued Bonding Company.
Later the bonding company was no
titled that the paving needed resur-
facing, but paid no attention to the
notice. The city had the work done
by another company at cost of $21,-
900 and brought action against the
bonding company on it's bond to re-
cover the cost of the work to the ex-
tent of $4,000 The bonding COM
pany claimed that 1t did not have suf-
f1cient notice before the city contracted
for the repairing Of the street, that the
bond was illegal and invalid
and that the work was recon
struction rather than repair, as it
cost $4,000 to re-surface the
street, and the entire paving only cost
$34.5S0 in the first place. The decision
of the lower court was in favor Of the
city and the case was taken to the
United States circuit court of appeals
which recently confirmed the decision.
Difference in Work.
Judge Phillips holds that the work
was not reconstruction as the base
was not changed, no change of grade
or curbing made, but simply a new
surface put on, which was necessary
by reason of the many holes in the old
surface. Regarding the cost he says
that there is nothing in the record to
show what is the relative cost of the
asphaltum surfac, and the other por
ton Of the pavement. "If the work
done by the cit is more expensive
than that Of the asphalt company it is
the difference between the genuine and
shoddy work"
suffieiency of Notice.
Regarding the suff1ciency of notice
Judge Phillips held that the company
recognizing similar notices previously
justified the reliance of the city upon
the sufficiency OF third like notice
calling for further repairs. He also
held that although the original con
tract called for two inches asphaltum
surface and the repair work consisted
of one and one-half inches coating
with one inch binding, the variation
did not discharge the surety from its
| liability for such repair work. s