Macfarland v. Barber Asphalt Paving Co.

29 App. D.C. 506, 1907 U.S. App. LEXIS 5478

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

In view of the fact that the testimony shows that the laying of temporary tracks on asphalt pavements is not at all unusual, and in view of the showing that no damage was done the pavement on this occasion, this allegation in the bill may be put out of view.

The question to be determined, therefore, is whether the District is to be held liable for the damage done said pavement by the escape of illuminating gas. It is settled doctrine that, where a party by his own contract creates a duty or obligation of possible fulfilment, he must make good his undertaking, unless prevented from so doing by the act of God, the law, or the other party. This rule is founded in reason and common sense. A party, if he chooses, may protect himself against contingencies. If he does not, he ought not to be heard to complain when the contingency he should have protected himself against happens, and loss ensues. It frequently occurs that the possibility of the happening of a certain contingency is urged upon the other party as an inducement to him to acceed to the favorable terms demanded, but whether this be so or not, in the absence of fraud the law cannot presume that such contingencies were not considered when the contract was entered into. In other words, the law construes the contract the parties signed, and charges the loss to him who therein assumed it.

In Dermott v. Jones (Ingle v. Jones) 2 Wall. 1, 17 L. ed. 762, a mason and house builder contracted with Miss Dermott to build a house for her on land which she owned. The house rvas to be built according to detailed plans and specifications, Avhich were made a part of the contract, which also contained the covenant that Jones would procure and supply all materials requisite for the execution of the work “in all its parts and details, and for the complete finish and fitting for use and occupation of all the houses and buildings, and the several apartments of the house and buildings, to be erected pursuant to the plan of the work described and specified in the said schedule; and that the work, and the several parts and parcels thereof, shall be executed, finished, and ready for use and occupation” at a day fixed. The house was built according to the specifications, except as modified by Miss Dermott, but owing, to a latent defect in the soil the foundation sank, and the building became badly cracked, uninhabitable, and dangerous, and was taken down and rebuilt by Miss Dermott upon a more secure foundation. Jones sued Miss Dermott for the contract price of the building, and she contended that she was entitled to recoup the amount she expended to make, the house fit for habitation. Mr. Justice Swayne said:

“The defendant in error insists that all the work he was required to do is set forth in the specifications, and that, having fulfilled his contract in a workmanlike manner, he is not responsible for defects arising from a cause of which he was ignorant, and which he had no agency in producing.

“Without examining the soundness of this proposition, it is sufficient to say that such is not the state of the case. The specifications and the instrument to which they are annexed constitute the contract. They make a common context, and must be construed together. In that instrument the defendant in error made a covenant. That covenant it was his duty to fulfil, and he was bound to do whatever was necessary to its performance. Against the hardship of the case he might have guarded by a provision in the contract. Not having done so, it is not in the power of this court to relieve him. lie did not make that part of the building ‘fit for use and occupation.’ It could not be occupied with safety to the lives of the inmates. It is a well-settled rule of law that, if a party by his contract charge himself with an obligation possible to be performed, he must make it good, unless its performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him.”

This rule was reiterated in United States v. Gleason, 175 U. S. 602, 44 L. ed. 289, 20 Sup. Ct. Rep. 228.

In the instant case the statute required the District to exact good and sufficient bonds from this contractor, guarantying, among other things, that it would keep this pavement in repair for a term of five years from the date of the completion, of the contract, and provided for the retention of 10 per cent of the cost of the pavement “as an additional security and a guaranty fund to keep the same for said term.” The Commissioners inserted this provision in the contract, and, as previously stated, supplemented the same with the provision that no allowance would be made for any unusual difficulties which might arise, “either affecting the original construction or maintenance of finished worh” and by the further provision “that if any of the pavements laid should, for any reason whatsoever, within the period of five years, prove inferior to the best laid in the District prior to July 1, 1886,” the contractor, on demand of the Commissioners, should remove and relay the same with new and approved material. It is now contended that the District cannot rely upon this last provision, because it does not appear that the engineer commissioner passed upon the question of inferiority. But the complainant in its bill states that the Commissioners called upon it to repair this pavement, and that the complainant declined to do so “for the reasons above set forth;” that is, because the Commissioners had permitted the railway company to lay temporary tracks over the pavement, and because of the action of illuminating gas on said pavement, and that but for these causes “said pavement at the end of said five years’ period would have been in perfect condition.” It is therefore apparent that, had the District elected to do so, it might have required the relaying, instead of the repair, of this pavement. Certainly the complainant cannot complain because the District waived such right, and merely required the repair of a pavement which the complainant’s own testimony shows proved inferior to the best laid prior thereto. A careful reading of the contract and of the statute authorizing and controlling it compels the conclusion that the asphalt company therein obligated itself to construct and maintain this pavement for five years, unless prevented from doing so by the act of God, the law, or the District. The company knew, or should have known, that gas mains were under this street. It know that escaping illuminating gas would injuriously affect asphalt pavements. It knew, or should have known, the character of the soil at this point, and the probability that water would seep up through the base which it constructed for this pavement, and that, if water did permeate said base, disintegration of the pavement would ensue. Notwithstanding these things the company constructed the pavement, and at first sought to avoid its obligation to repair on the ground of the laying of the temporary tracks of the railway company, although its own superintendent was compelled to admit that at the time the tracks were laid he could discover no damage occasioned thereby. It was more than five years after the work was done that anyone discovered that illuminating' gas had in any way affected the pavement, and this, notwithstanding that the pavement had then been disintegrating for about two years. Surely, under these conditions, to require the District to pay for these repairs would be to utterly disregard the plain obligation of the contract; and this, of course, we cannot do. Had the complainant entertained any doubt as to the meaning of the provision that no allowance would be made for any unusual difficulties which might arise, either affecting the original construction or maintenance of finished work, and as to the meaning of the guaranty provision, it might have insisted upon a provision in the contract absolving it from responsibility for damage to the pavement from the escape of illuminating gas, and from the effect of the water coming up through the base of the pavement. It did not ask for the insertion of either provision, and the District was therefore led into contracting and paying for a- pavement, the base of which complainant’s own witnesses admit was not impervious to moisture, a pavement which, as experience demonstrated, was susceptible to the action of gas. It is hardly necessary to observe that the District would not have entered into the contract at all but for the undertaking of the complainant that the pavement would be kept in repair for the period required by the statute.

The decree must be reversed, with costs, and the cause remanded, with direction to enter a. decree in conformity with this opinion. Reversed.