Webster City freeman. [volume] (Webster City, Hamilton County, Iowa) 1884-1946, 1916-07-11

Iby an incomplete performance of the
contract. The appellant claims
that there has been substantial
compliance emitting it to such ass
essment as would have been proper
had the contract been complied
with.
a. 1t is said by appellant that in
this case the contractors gave, a
guaranty bond to keep in repair and
make good any defects for period
of five years from the completion
and acceptance OF the contract, and
that such bond is authorized by
statute, and it is said that under
this guaranty any defect in material
Tor workmanship was to be made
good, and that, therefore, the action
|of the trial court in setting aside
the entire assessment and cancelling
the same in face of the provision
quoted is error.
Conceding, for the purpose of ar
gument, that in another law suit
liability could be established on the
bond, this does not obviate the nee
essity for substantial compliance
with the contract before the cost
of the Improvement may be assessed
against abutting property.
5. 1t is contended by appellant
that the plaintiff was present during
the progress of the work and made
complaint as to some of these mat
tiers, and that charges were made
to meet his complaints and criti-
cisms; that he is estopped from
disputing the validity of the asses
sment. especially where the work
and material are in substantial COM
pliance' with the contract.
At one point in appellee's argu-
ment it, is said that when a part of
this work was being done it was
done under the observation of the
appellee in sitting on his front
porch. and that changes were
made to meet his objections. But at
another point in the argument it is
said plaintiffs evidence is not cred
ible because he was SO far away sit
ting on his porch that he could not
see.
They say that there Is no evidence
that the mixture of cement was not
as specified except the unsupported
statement of Mr.. Atkinson, based on
distant observation from his front
porch 1t is shown that rlaintiff
was engaged in his ordinary avoca-
tiOn most of the time during the
day. At one time during the pro-
gress of the work he objected to the
material used in the foundation for
the curb and gutter which was,
under the specifications, to be COM
posed of coarse gravel, of certain
size. This is the matter before re-
ferred to wherein an argument
seems to have been made between
one of the contractors and the city
engineer. Upon plaintiffs objec-
tion to this material. two loads were
hauled away and other material
substituted which it claimed did not
comply with the contract. There
may be some other items about which
the plaintiff had some knowledge,
but it is not shown that as to all
items. or that as to the work gener-
ally plaintiff was present making OBJ
jections and that things were done to
meet his complaints so as to estop
him. AS to some matters he could
not know. This is especially true as
to the thickness of the paving.
6. 1t is next contended by appel
liant that because the work was ap-
proved by the inspector and later ac-
copied by the City that it is conclus-
i've upon the lot owner. This is the
rule where there has been substan-
tial, compliance with the contract
and there is no fraud.
In Re Apple, 161 Iowa, 1922.
But not SO where there has not
been substantial compliance with
the contract.
Mccain VS.. Des Moines. 12s' Iowa,
331.
Z, Lastly, as to appellants claim
that there was substantial compli,
ance with the contract, and that
therefore plaintiff may not escape
payment. We have referred to a
number of instances where the con-
.ract was not complied with. Some
Of these could not be the result of
mere inadvertence. In a number of
instances there appears to have been
10 attempt to comply with the con-
ract. 1t is said that as to some Of
he matters complained of that they
we're put in the same as was done
With paving and curbing in prior
'ears. But it appears that the spec I
fications and the contracts were not
he same as in former years. The