The defendant in error made a contract in writing with the board of public works of the District of Columbia in 1872 for the paving of parts of certain streets in the city of Washington with the 'Miller wood pavement.' In that contract there was the following clause, on which this action is founded, on account of its alleged violation by the defendant:
'Ninth. It is further agreed that if at any time during the period of three years from the completion of the work to be done under this contract any part or parts thereof shall become defective from imperfect or improper material or construction, and in the opinion of the said party of the first part require repair, the said party of the second part will, on being notified thereof, immediately commence and complete the same to the satisfaction of the said party of the first part; and in case of a failure or neglect of the said party so to do, the same shall be done under the directions and orders of the said party of the first part at the cost and expense of the said party of the second part.'
The plaintiff alleges that the defendant did not in good, sufficient, and workmanlike manner, nor in accordance with the specifications of the contract, execute the work therein mentioned, and that within three years from its completion a large part o it became defective from imperfect and improper material and construction. It is further alleged that defendant was duly notified of this, and required to repair it, which he failed to do, whereupon plaintiff did so, at an expense of $40,517, for which judgment is asked against defendant. The answer is a substantial denial of these allegations, with some special matter in defense not material to be noticed here. On the trial before a jury, after all the plaintiff's evidence was in, the defendant demurred to it as insufficient, and the court directed the jury to find a verdict for the defendant. It appears from the bill of exceptions, which contained all the evidence offered, that within the three years after the completion of the work the pavement became so badly broken up and so imperfect as to require extensive repairs, and demand was made on defendant to repair it; that on his failure to do so the officers of the district who had charge of the matter determined to remove the wooden pavement on several squares of the streets and replace it with another kind of pavement, to-wit, vulcanite concrete pavement; that the cost of this was $40,517, except that of this sum $1,242.92 was for taking up and relaying wood pavement and removing debris. No evidence was given that the material furnished by defendants was defective or unsound, or that the work was not well done in putting it down.
It is too plain for argument that the defendant did not agree that if his pavement should need repair within the three years, that the authorities of the district, because he failed to repair, could change the entire character of the pavement from a wooden to a stone or concrete or vulcanite or any other pavement, and place it where the one had been constructed by him, and charge the entire cost of the new and better class of pavement to him. Even if it be conceded that defendant was bound at all hazard to keep his pavement in repair for the three years, or pay the district government for so doing, this meant repair, not a new pavement,-such repairs as that kind of pavement was capable of, and not a new and much more expensive one, to be laid at his cost. As plaintiff did not make such repairs, and offered no evidence of what it would have cost to make them, we do not see that there was any evidence on which a verdict could be rendered. It is true that it appears that plaintiff paid $1,242.92 for taking up and relaying wooden blocks, and if there had been any evidence that this was rendered necessary by the failure of the defendant to perform his contract well, it might have been left to the jury as to that much damage by reason of such failure.