(dissenting) : The contractor fully understood that the pavement was to be laid on the macadam base furnished by the city, and it undertook to perform a task which it knew, or ought to have known, could not be successful by reason of the insufficient foundation furnished by the other party. It was, no doubt, considered by all concerned that the work would last much longer than ten years, but a guaranty and bond were required for that length of time which it seems would hardly have been given or received had any of the parties known or believed the work was to be paid for, although shortly, by reason of a bad foundation, to become defective. It is much like the situation in the City of Akron v. Barber Asphalt Paving Co., 171 Fed. 29. There the damage was caused by the city permitting a street-car company to put on heavier equipment, and it was said:
“Clearly, then, the parties had the subject of street car tracks in mind. . . . Indeed, the paving company furnished and mixed the materials for the track foundation; ... It was the duty of the paving company, then, either to insist upon having the contract provide against performance of the covenant of guaranty in any case of imperfect tracks or track foundation, or to make good its covenant in the form adopted.” (pp. 36, 37.)
In Barber Asphalt Paving Co. v. City of Louisville, 123 Ky. 687, the company contended, as here, that it was liable only for defects in material or workmanship. The damage was caused by leakage of gas mains. It was said in the opinion that when the contract was made there were gas mains under the street to the knowledge of the parties —
“And, this being true, it is to be presumed that the guaranty as to repairs contemplated the making of repairs resulting from such leakage, *797as well as those caused by the use of the street from travel and exposure to weather.” (p. 694.)
The testimony showed that cracks extended entirely across the street, some wide, some narrow, and that in driving with a horse or a car one had to dodge from one side to the other to avoid them. In the Hanson case a general guaranty provision was held to be limited by a restricted clause which controlled the instrument. Here, the reverse is true. The first part of section 28 refers to defective material and workmanship and the next sentence provides that in addition to the requirements of the general specifications, whenever any section of the pavement shall disintegrate or show waves the asphalt and binder shall be cut to the concrete and repaired with new asphalt and binder laid as specified therein. The court expressly found that this meant to cut to the base and that no attention whatever was paid to this clause by the company, and also:
“If it is found necessary in any three hundred lineal feet of pavement to repair any more than one-third of its area, or if the lineal feet of cracks in any section of the pavement exceed the proportion of one lineal foot of cracks to four square feet of pavement then shall the entire wearing coat in such defective section be cut out to the concrete and new asphalt and binder laid as above.”
The bond, after mentioning the conditions of the specifications and the contract “which are here referred to and made a part hereof,” provided that whereas—
“Said . . . Company did undertake and agree to keep and maintain the said paving of said Broadway as herein mentioned, and as in said contract and specifications provided, for the full period of ten (10) years, . . . Now, therefore, if the said . . . Company shall well and truly perform its said ’agreement and shall maintain the aforesaid street in good condition as provided in said specifications and contract, and shall otherwise comply with the terms and conditions of said contract and specifications in regard to the maintenance of .the work, then this obligation shall be void, otherwise to be and remain in full force and effect.”
What all this language was used for unless it meant what it said is beyond my comprehension. It would have been no trouble at all to word a contract- and a bond so as to provide clearly beyond all question merely for defects of workmanship and material, and to my mind, it would have been difficult to provide much more clearly than was done, for repairing the *798defects found by the court to exist. Further, unless the defendants so understood the contract and bond, I can find no explanation for their doing over three thousand dollars’ worth of repairs nine years after the pavement was laid, which appears to be a construction, by the parties, of the contract and bond they had entered into.