274 F. 659 | N.D. Ohio | 1920
This cause is before me on general demurrer of defendant to the first cause of action in plaintiff’s petition. This cause of action is based on alleged breaches of a written contract for the construction of approaches to the Detroit-Superior bridge in the city of Cleveland, Ohio. The breaches complained of, and as a result of which plaintiff seeks to recover damages, are two: (1) That defendant failed in a reasonable time to deliver possession to the plaintiff of the sites upon which the approaches were to be constructed, as by its contract it was required to do. (2) That the plans and specifications for the work to be done which defendant was required to furnish, and which were on file at the time the contract was entered into, were during the progress of the work modified, changed, and altered, thereby causing great delay, to the damage df plaintiff. Defendant’s main contentions are that for injuries of this character, no action can be maintained against the county commissioners of an Ohio county, and that, even if such an action may be maintained, the defendant is not liable for damages due to a delay caused by the wrongful neglect or default of the county commissioners.
No doubt is entertained by me that the contract required the defendant to deliver the site upon which the plaintiff was to do the work within at least a reasonable time, nor that the defendant was required to furnish completed plans and specifications whereby the contract work
Plaintiff further alleges that, had full possession of the sites been delivered as contemplated and as was required, and had not the changes and modifications been made in the plans and designs of the work, the plaintiff could and would have been able to complete the work as originally contemplated, by July 31, 1917; that in consequence of this failure to deliver possession until approximately four months later than the date when such possession should have been delivered, and of these changes and modifications in the plans and specifications, plaintiff was so delayed that it was not able to complete the work until October 30, 1918, and that plaintiff was, as a result of these delays, obliged to do the work during two winter seasons, under adverse weather conditions, at great disadvantage, and during a period of time when, owing to war conditions, there was a shortage of labor, and wages and prices of material were constantly and rapidly rising. This increased cost and expense, it is alleged, amounts to $199,000.
As already said, upon the principles and authorities above noted, a good cause of action, it seems to me, is thereby stated, if defendant is subject to the same legal responsibilities under its contract as is a private corporation. Defendant’s contention that it is not so liable, and that, on the other hand, no legal right exists to sue a county in this situation, and even that, if it may be sued, it is not responsible for damages arising by reason of delays thus caused, is not, in my opinion, sustainable. All the cases cited in support of this contention have been given due consideration, and do not, it seems to me, when rightly understood, support it.
This proposition has often been held and decided in Ohio, and the general rale is that the capacity to sue and to be sued, and to prosecute and defend all suits in law or in equity, is commensurate with the official powers and duties of county commissioners, and embraces all causes of action arising out of the duties and powers vested in them by law. The net result of these several decisions is, in my opinion, correctly summed up in Commissioners v. Ziegelhofer, 38 Ohio St. 523, 529, in these words:
“Here the claim is founded upon contract, and grows out of the corporate ’lability of the county for the official acts of the board of county commissioners. In this respect, the rights of persons contracting with the commissioners, and the liability of the county on their contracts, are of the same nature as the corporate liability of private corporations. Tn either case, the capacily to contract is derived from the statute, but the liability to others arises from the acts of those authorized to bind the corporate body.”
See, also, the following: Shanklin v. Commissioners of Madison County, 21 Ohio St. 575; 582, 583; Commissioner v. Noyes, 35 Ohio St. 201, 206, 207; State ex rel. Jewett v. Sayre, 91 Ohio St. 85, 109 N. E. 636; Paine v. Portage County, Wright (Ohio) 417; Kinney v. Commissioners, 8 Ohio Cir. Ct. R. 433; McLean v. Hamilton County, Fed. Cas. No. 8881.
In State ex rel. Jewett v. Sayre, it is in effect held that county commissioners are liable in damages for the breach of an express or implied covenant in a road construction contract, and that they may
Defendant cites and relies upon the following authorities: Commissioners of Hamilton County v. Mighels, 7 Ohio St. 110; Grimwood v. Commissioners, 23 Ohio St. 600; Finch v. Board, 30 Ohio St. 37, 27 Am. Rep, 414; Board v. Volk, 72 Ohio St. 469, 74 N. E. 646; Board v. Storage Co., 75 Ohio St. 244, 79 N. E. 237; Commissioner v. Gates, 83 Ohio St. 19, 93 N. E. 255. All of these cases are of the same general character and involve the same legal principles as Commissioners of Hamilton County v. Mighels. In this case it was held that a county is not liable in an action for damages due to the negligence of its commissioners in the maintenance of a public -building whereby a person lawfully therein sustained personal injuries. However, in the opinion, at page 116, it is recognized that a county would be liable for damages growing out of a wrongful breach of a contract lawfully entered into. It will also be noted in passing that the authority of the other cases is somewhat shaken by the recent decision of the Ohio Supreme Court in Fowler v. City of Cleveland, 100 Ohio St. 158, 126 N. E. 72, 9 A. L. R. 131, particularly in consequence of the reasoning upon which the judgment therein rests. See 100 Ohio St. 175, 126 N. E. 72, 9 A. L. R. 131; Ohio Law Reporter, March 15, 1920.
Defendant further alleges in support of its contention that, if a recovery is here permitted, sections 2359 and 5660, G. C., will be violated, and that therefore no cause of action is stated, because to allow a recovery would be to violate these sections. Section 2359, G. C., and related sections, require a preliminary estimate of the cost of the entire work to be made, and forbid the letting of a contract at a price in excess of that estimate. Section 5660 requires a certificate of the county auditor that funds are in the treasury or in process of collection, not appropriated for any other purpose, sufficient to meet the liability created by the contract. It is urged that these provisions of the law evidence a fixed purpose to limit the liability of a contract lawfully entered into, so that no burden can be placed upon the taxpayers in excess of the preliminary estimate or of the amount so certified, and that no action can be maintained to recover any sum which may be in excess thereof. Upon principle and sound reasoning it does not seem to me that this can be the force and effect of these sections. Undoubtedly it is tire law that no recovery can be had upon a contract entered into in violation of the provisions of section 2359 and related sections, nor in violation of section 5660 in cases to which that section is applicable.
But this is a different proposition from saying that no recovery can be had upon a contract entered into in conformity to these sections, which is afterwards wrongfully breached by the county commissioners, even though the’ damages thereby sustained are not included as a part of the estimate, or if added to expenditures previously made on account of the contract may be in excess of the estimate or of the certificate.
For the foregoing reasons, I am of opinion that plaintiff’s first cause of action is in law sufficient, and that the demurrer thereto should be and is overruled. An exception may be noted.
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