MacFarlane v. Mosier & Summers

proposals or bids for the work of construction, that bids were received, and that it was duly ascertained by the commissioner of public works, upon whom rested the power and responsibility of the determination, that Hosier & Summers’ bid was that of the lowest responsible bidder. ' This bid was accompanied, as required by the terms of the advertisement, with a bond conditioned in effect that, if the bid was accepted, the bidder would make the contract with the city according to the terms proposed in the advertisement for bids. But the legal scheme governing the letting of contracts of the class to which the contract in question belongs provided for a report by the commissioner of his determination to the common council, without whose consent the contract could not be made. This was done in this instance, and the commissioner of public works was duly authorized about April 4th to enter into the contract with Hosier & Summers. Plaintiff claims that, at this point a complete contract was made between the city and the contractors. But a further charter provision required that all contracts of this class must be in writing, and that a bond, to be duly approved by the mayor of the city, must also be furnished by the contractor, providing in effect for the faithful performance of the contract. The advertisement for bids and the bid itself contemplated and provided for this exact procedure.

[2] Doubtless the common council, after duly authorizing its superintendent of public works to enter into this written contract, could not, nor could that official of his own motion, arbitrarily refuse to compíete the business of making the contract by accepting a satisfactory bond of the contractor and signing a written contract conforming to the advertisement, the bid, and its acceptance. Sufficient authority for this proposition may, I think, be found in the cases cited and reviewed in the prevailing opinion in Molloy v. City of New Rochelle, 198 N. Y. 402 , but a contract in form to bind the city as a contract between the parties for the actual construction of the building had not then been completed. The bidder was still required to furnish a satisfactory bond, which was thereafter to be formally approved, and the written contract was to be prepared and signed, for no other contract than a written contract in such case could be a contract between the parties as the charter of defendant city provides. I think, therefore, the trial court was right in holding that at the time of the violations complained of defendants did not, in the manner of performance of a contract with the city, violate the provisions of section 3, for at the time of the violations alleged the contract had not yet come into existence. Hepburn v. City of Philadelphia, 149 Pa. 335 , 24 Atl. 279 ; Water Com’rs of Jersey City v. Brown, 32 N. J. Law, 504 ; Edge-Moor Bridge Works v. County of Bristol, 170 Mass. 528 , 49 N. E. 918 ; Dillon’s Municipal Corporation (5th Ed.) § 810.

1 The violations alleged occurred while a subcontractor named Brown H was engaged in excavating upon the site of the building. The particuI lar violations alleged were that this subcontractor permitted or re-I quired laborers engaged in the performance of that work to work H more than eight hours a day. This excavation was a part of the work H included in the specifications, and also in the written contract there

after made. Brown had agreed with Hosier & Summers to do this work, and began it soon after it was apparent that Hosier & Summers were to have the contract. Hosier & Summers paid him for this work, and the work was thereafter included with that for which they received pay on estimates of work performed by them under their contract with the city.

[3] Appellant claims that, even though it be held there existed no actual contract between the city and the contractor until the written contract was signed, yet when it was signed it related back to the time the commissioner of public works was authorized to enter into it for the city, and the statute having been violated in the performance of a part of the work contemplated by the contract in the interim between the authorization and the making of the contract, the contract itself at once became void because of the previous violations. It does not seem that can be held to result from these facts. It is conceded that after the written contract was in fact made no violations of the statute have been shown. The utmost that could justly be claimed as a result of the previous violations would be that the persons who “required or permitted” them could not recover for the work in doing which the violations occurred; the work having been done in anticipation of, and not under, the contract. But this is not the principal purpose of the present action. It attacks the validity of the whole contract.

No intimation is made that the execution of the written contract was unduly delayed for the purpose of permitting any part of the work contemplated to be done' without the statutory restrictions as to the manner of performance. It is doubtless true that, if there were a basis for a suggestion that thé execution of the contract was in fact delayed for the purpose, even incidentally, of avoiding the statutory prohibitions, it would be held, and properly enough, that the contractors had in fact violated the statute, and no contract, under those circumstances, should have been thereafter made with them, and, if made, it would have been void. But the good faith of defendants is not attacked.

[4] I think, also, that the trial court held properly that, even conceding that the work being done by Brown, the subcontractor, at the time of the violations alleged, was done under the contract between the city and the contractors, the evidence does not show that any of these violations were required, or permitted, by the contractors, or even that they occurred with their knowledge or consent. It would seem to be a manifest injustice to hold that violations of the statute for which the contractors were not responsible, as having themselves required or permitted them, or as having with actual knowledge, or under such circumstances as would properly charge them with constructive knowledge that violations of the statute were either required or permitted by others, who were engaged on the work, could properly be attributed to the contractors for the purpose of enforcing the drastic penalty of a forfeiture of the contract. The opinion of the trial court on this branch of the case leaves nothing of importance to be said.

The judgment should be affirmed, with costs. All concur.