Webster City freeman. [volume] (Webster City, Hamilton County, Iowa) 1884-1946, 1916-07-11
| is a dispute in the testimony.

|JectiOnS made by appellee DeiOfe IHe
city council were not sufficiently de-
finite and specific to advise the
council of the matters relied upon,
and that appellee is confined to the
objections made before the council
and others were waived.
Some of the objections may not be
Sufficient, taking each one by itself,
but some of these are elaborated up
on by later objections on the same
subject; for instance, objections 2,
Is, a and 5 should be considered and
construed together on one point. We
think the objections are sufficiently
specific, at least as to some of the
matters now relied upon, and suf-
ficient of them to justify the trial
court in annulling the assessment.
Furthermore, the objections certified
by the council to the district court
upon appeal constitute, in sense,
the pleadings and the issues, where
no other pleadings are filed. The
defendant objected to the objections
when they were offered in evidence,
but the evidence of the witnesses
was was not objected to because not
relevant or upon the ground that the
objections were not sufficiently
specific.
-..r
2. 1t is also contended by appel
liant that the objections filed before
the city, council may not be enlarged
or amended at the time of the trial.
This is the general rule, but the
Code, Sec. s24, provides that all OBJ
iections to errors, Irregularities or
inequalities in the making of said
special assessments, or in any of the
prior proceedings or notices, not
made before the council at the time
and in the manner herein provided
Tor, shall be waived, except where
fraud is shown.
Appellee contends that the evil
dation for the paveT ent was not of
the thickness required by said spec
ifications and did not comply there
with, in that the foundation was not
four inches thick, and that the dis
crepancy in thickness was SO great
as to constitute a fraud, and that
this was not known to him and 4
could not have been discovered un
til the pavement was cut up anGM
the evidence introduced on the trial 4
And the claim that as this was nov
known at the time the ObjectionR'
were filed that he has right unde4e
the statute to file amended object
tons when the fraud is discovered!
We think this is the meaning OF
the statute and that under the ree
cord there was at least constructive
fraud, if indeed there was not acy
tual fraud in regard to this anty
some of the other matters CONT
planned Of.
8. AS to the plaintiffs conten-i
ton that the contract under which
the improvement was constructed
was not a legal contract for the rea-
son that the same was not let TO
the lowest bidder on sealed pro-
posal, but that it was entered into
by the city by private negotiations
with the contractors. The appel
lants contention is that because OF
the substitution of different class
of asphalt after the bids were re-
.ceived and before the contract was
let the statute was not complied
with. And they claim that the
provisions of the statute are man
datory and must be strictly con-
strued in favor of abutting owners,
and that if this is not done the city
has no jurisdiction to proceed. In
the original argument appellant
seeks to meet this objection by the
argument that, because better
class or grade of asphalt was sub
stituted, plaintiff therefore has no
Just cause for complaint.
In supplemental argument the
claim is made that there are three
different kinds OF asphalt under
Glass A, upon which the contractors
bid at $1.71 per square yard. But
as to this last proposition, the fact
remains that after the bids were
opened and before the contract was
awarded, the, other class, that Is,
Class B, Bermudis Lake Asphalt, up
on which the contractors bid $1.76
per square yard, was substituted. It
may be that in particular case
the substitution of a better quality
of material would not work any pre-
judice to the property owners Of the
city, but there are two or three Diff
ficulties in regard to this matter. In
the first place, the other bidders
did not have the same chance as was
given the successful bidders. In
the next place,the procedure adopted
in this case ignores the plain provis-
- - L. go .,Al ~ Nan