Concurring- Opinion by
Mr. Justice Williams :I concur in this judgment, but I feel bound to put my reason for such concurrence on the record. A city, like a natural person, is bound by its improvident contracts, after performance by the other party, unless fraud is shown. This judgment can be sustained only upon that ground. As originally drawn the *548specifications for the Queen Lane reservoir were all that could be desired for the protection of the city; and the contract, with the exception of a single provision, was wise and adequate. But the objectionable provision put the stipulations of the contract and the well drawn specifications under the power of certain officers. They were empowered to supervise, which was proper enough, but they were also empowered, as they held, to change the terms of the contract at will, to add to or diminish the work required by the specifications, increase or diminish the quantity or the character of materials used, and readjust the compensation of the contractors and the cost to the city without the consent or knowledge of the municipality, and without responsibility for the consequences. Under this provision great changes were made in this contract. The testimony shows that these changes are responsible for the worthlessness of the reservoir, and the waste of hundreds of thousands of dollars in repairs.
The appellees say in their argument: “ The chief of the bureau of water, therefore, naturally endeavored to economize. The result of his economy was the specification of a depth of clay bottom insufficient for the purpose. The water, therefore, penetrating through this insufficient clay bottom sank into the fissures of the rotten or micaceous rock and found its way in natural channels, thus manifesting the so-called leaks.” Reducing the thickness of the bottom reduced its power to hold water and changed a material provision in the contract.
Changes made in the contracts of the city should be made only by the city. The municipality ought never to attempt, nor if the question be properly raised has it the legal right, to abdicate its functions and invest an officer with unlimited power over its contracts, and the pockets of its tax-payers. It does not seem to be doubted that these changes were honestly made, and as the result of mistaken advice from subordinate officers. They were none the less disastrous on that account. The city must pay enormously because of changes that were wholly unnecessary, and that, as the event shows, ought never to have been made. The vice is in the provision to which we have referred, and it ought never to appear again.
Sterrett, C. J., concurs in the foregoing opinion.