
    Olaff Atkinson, Appellant, v. The City of Davenport.
    Acceptance of Paving: not established. In an action in which the final acceptance by the city of work under another paving contract was an issue under a counterclaim, the evidence showed that the work was completed late in the fall, and that inspection was deferred for some time because of snow; that on February 4th following, the city council passed a resolution condemning the pavement, and directing payment to be withheld till the proper quality of brick was substituted; that the plaintiff then wrote a letter offering to bring the brick up to standard as soon as the season permitted, whereupon, in consideration of this promise, the paving was paid for; that plaintiff subsequently did some repair work on the pavement, which was not shown to have been accepted by the city as a compliance with the contract; that plaintiff was aware that the city claimed that from one to two-thirds of the brick were defective; and that, though notified later to complete the contract, plaintiff had failed to do so. Held, that the evidence sustained a finding that there had been no acceptance by the city.
    
      Appeal from Scott District Court. — Hon. A. J. House, Judge.
    Saturday, December 22, 1900.
    This action was brought to recover a balance Sue from the defendant for paving done for it under contract. The defendant admitted that the work was done as alleged, and that the amount claimed therefor was unpaid, and pleaded, as an offset to the amount due, damages for the failure of the plaintiff’s assignors to do other paving for it according to the terms of another written contract. The case was tried to the court, and a judgment rendered for the defendant. The plaintiff appeals. —
    Affirmed.
    
      W. M. Chamberlain and Ely dc Bush, for appellant.
    
      George W. Scott for appellee.
   Sherwin, J. —

The defendant’s counterclaim is based on the ground that appellant’s assignor did not furnish the quality of brick required by the contract. To this the plaintiff replies that the brick used “were duly inspected by the defendant, and accepted” “before the same ‘were placed in the said paving,” and “that said brick were not manufactured by plaintiff or his assignor, but were purchased on the market, and paid for, * * * because said brick were inspected and accepted by defendant,” and that the work was inspected, accepted, and paid for after its completion. ” The specifications for the work in question were made a part of the contract, and one clause thereof is as follows: “And no work shall be considered as accepted which may be defective in its construction, although the engineer may have failed to point out the defect during construction and before final acceptance of the work, and any work condemned by the engineer as defective or improperly done shall be taken up and rebuilt, or the defects otherwise remedied, as may be directed by the engineer and committee on paving. ” The contract further provided that the brick used for the top course should be of the very best and hardest selected brick, specially burned for street paving, and, further, that all brick used on that street should be equal to the best quality of Galesburg paving brick. While the work was in progress, the evidence tends to show that some inspection was made of the brick used, and that Borne that had been shopped in for use were rejected even before they were taken from the cars, but no express acceptance of any brick used is shown while they were being put in.

There was a conflict in the testimony as to the quality of the brick used, but we think the trial court was fully justified in finding that a large part of them were not up to the grade required by the contract. In fact, the plaintiff himself, who was a member of the contracting firm,, says that some of the brick used were the “most defective-he had ever seen.” It is clear that, under the terms of this contract, nothing but a final acceptance of the completed work would constitute, a waiver as to the material used; .hence the cases cited by the appellant to the effect that a failure to object will be presumed an approval, and that the city would be bound by errors in judgment of its inspector, and that acceptance by inspection is final, are not in point.

The only point remaining to consider is whether the city did finally accept the work,, and on this there is a conflict in the evidence. The record shows the work to have been completed late in the fall of 1891, at just what time does not appear. There is evidence tending to show, however, that an inspection of the completed work was mutually- temporarily abandoned on account of snow thereon, and that it was not finally inspected until some time later. On the 4th of February, however, the city council passed a resolution condemning the pavement, and ordering payment therefor withheld until the poor brick were taken out, and others of the quality required by the contract put in. This resolution seems in some way to have reached the ears of the contractors, for the plaintiff so testifies, and the letter following was soon thereafter received by the city authorities.: “Davenport, Iowa, February 16th, 1892. S. F. Smith, Chairman of the Paving Committee of the City of Davenport — Dear Sir: Understanding that some parties make the statement that' some of the top. brick in the paving which we have done for the city of Davenport are not equal to the samples presented by us at the time of our contract with the city of Davenport, now, in order to show our good faith, and of our own volition, we take pleasure in saying that, when the proper season comes in which said work can be done, we will, with the paving committee and city engineer, carefully go over all work done by us, and will at our own expense cheerfully replace with brick equal to the sample any brick that may be deemed inferior thereto. Yours truly, Atkinson & Oloff.” Upon receipt of this letter, this action was taken by the city council, February 17, 1892: “Motion, of Alderman Smith that balance due to Atkinson & Oloff for paving of Front street be paid, in consideration of the execution of the foregoing agreement, was adopted;” and the balance due for said work, some $4,000, was thereupon paid. It is manifest from this record that there was no acceptance of this work, at least before the action of the council on the 17th day of February. If this can be so treated, it was conditioned upon the promise contained in plaintiff’s letter of the 16th, and was not an acceptance of the work as it was at that time.

But-plaintiff says that he and his partner afterwards went to Davenport, and complied with the terms of his contract and letter; but his own testimony does not show any attempt on his part to replace the large number of soft brick that had been put in the pavement. He says that he raised some depressed places and repaired around the car tracks, where the brick had been forced up by the ties. No further work is shown, nor is it shown that the city accepted this work as a compliance with his contract. ■On the other hand, it appears that the plaintiff had full ^knowledge of the city’s claim that from one to two-thirds •of the brick used by them were unfit for paving purposes. 'The resolution of February 4th was very broad, and of this the plaintiff says he knew. Yerbal complaint was also made to him, and there can be no question that he knew the full extent of defendant’s claim when he made the repairs he did. In October of the same year the firm was again notified in writing -to complete its contract by putting good brick in place of the poor ones, but it did nothing further in the matter. The finding of the trial court is sustained by sufficient evidence, and is affirmed.  