(dissenting):
The walks were constructed on standard specifications and many such walks were laid in the city at an expense of ten cents per square foot, and undoubtedly contracts could have been made with responsible parties to perform the work according to the specifications in every respect at that price.. When the contract was let to the plaintiff the owner called his attention to the rubber stamp provision which allowed only ten cents per square foot, but the contractor claimed that the city could pay two dollars under the charter. The plaintiff had taken several contracts to build walks upon these specifications at ten cents and less, and had taken many contracts at twelve cents. He says it costs more per foot to build a 50 foot walk than one of 100. The walks in question were one 136 feet, one 143 feet. As the plaintiff puts it, he usually gets twelve cents whether the walk is 50 feet or more; that the long job would help to make up what they lost on the short one. He says: “The man who had 200 feet of walk had to help pay to build the walk of a man who had but 50 feet of walk.” If the property owner is paying for his own walk he can undoubtedly employ the highest bidder if he chooses, but when the city is to pay a part of the cost it is but fair and reasonable that he should take advantage of the lowest bidder if the work is done according to the specifications. No effort was made to obtain a contract for these walks at ten cents, although it is evident *538that such contracts could have been made. The evidence tends to show that the walk in question had a granite finish, which finish was not called for by the specifications, made the walk more expensive and it is claimed that such walks are better. The rubber stamp provision was not intended to annul the charter provision or to deprive the property owner of one-half of the cost of the walk, but it was to limit the expense to the city to what was a reasonable and fair price and to what competent contractors were willing to" contract for according to specifications.
The plaintiff’s evidence is confined to proof of the cost of the particular walks in question with a granite finish. He offered no proof as to the cost of constructing the walks according to the specifications named in the application and permit. It appearing that responsible contractors were ready to build walks at ten cents, the action of the property owners in contracting with the plaintiff for twelve cents was unreasonable and the plaintiff and the property owners are fairly limited to •the ten cents mentioned in the rubber stamp provision.
The defendant was not permitted to show that at the time these claims were coming in there were other claims of the same character for sidewalks built by others than the plaintiff at ten cents per square foot and that other contractors were laying walks under those specifications at that price. The witness Meeker was building many walks under contract, and the defendant was not permitted to show that the contract price was ten cents. The exceptions to the exclusion of this class of evidence were well taken. It bore directly upon the question at issue as to the cost and the good faith of the agreement that ten cents should be the maximum price which should be considered in adjusting with the city. Under the charter the city was chargeable only where the application for a walk was approved of by the commissioner of public works, and in case he deemed its construction at that time unnecessary he could withhold his permit. If he knew that walks could be constructed by responsible parties according to the specifications at ten cents and he had known that the property owners were without question to pay twelve, it would be a proper discharge of his duty to say that the construction of the walk at that time *539was not necessary. When .lie was called upon to determine whether this walk should be built he knew, and probably the property owner knew, that some contractors were doing the work at ten cents and others at twelve, and they agreed between them that so far as the city was concerned it should be considered a ten-cent job. In other words, the construction of the walk on these specifications was permitted with the understanding that the highest bidder- was not to have the work. I think it was well within the power of the city and the property owners to make this contract, and, under the circumstances, it was entirely reasonable and proper. I, therefore, favor a reversal of the judgment and the order upon the law and the facts and the granting of a new trial, with costs to the appellant to abide the event.
Judgment affirmed, with costs.