Carver v. City of Camden

78 N.J.L. 293 | N.J. | 1909

The opinion of the court was delivered by

Minturn, J.

In March, 1907, the city council of Camden passed an ordinance providing for the paving of Federal street, between Cooper’s creek bridge and Twenty-seventh street, with sheet asphaltum. Estimates were received on June 25th, 1907, after due advertisement, for the pavement of the street with asphaltum and Belgian blocks, and these estimates were laid over. In February, 1908, the ordinance of March, 1907, was repealed, and a new ordinance was then passed providing for the paving of Federal street, between Cooper’s creek bridge and Marlton avenue, with Belgian blocks, and between Marlton avenue and Twenty-seventh street with sheet asphaltum. Without further advertisement, and in April following, a contract was awarded to the defendants, B. F. Sweeten & Son, for the pavement of Federal street, between Marlton avenue and Cooper’s creek, with Belgian blocks under their estimate of June 1st, 1907. The contract for the Belgian block pavement from the bridge to Twenty-seventh street was awarded to the Filbert Paving Company, and that contract in the case of Filbert Paving Company against Camden and Sweeten was sustained by the judgment of this court at the June Term, 1908. The contract awarded to Sweeten & Son was evidenced by the report of the committee of council accepting the Sweeten bid, which report was. presented and accepted bjr council at the meeting on April 30th, 1908.

The written contract between the city and Sweeten & Son in pursuance of this report was dated and executed on May 8th, 1908. We are not referred to any provision of the charter of Camden which provides for a power of veto in the mayor either of the report of the committee awarding the contract to Sweeten & Son, or of the contract itself, and it seemed to be conceded on the argument that such veto power was not expressly conferred. The contract to Sweeten & Son, therefore, became effectual on the 8th of May, 1908, and in pursuance of its provisions the contractor entered upon the prosecution of the work. On the 7th of May of that year they contracted with a dealer in writing, which is in evidence, for a supply of granite paving blocks to be used upon the work, and the testimony taken shows that they have in this manner incurred an obligation in pursuance of this contract to the amount of $17,500, and that this paving material, in part at least, was deposited on the line of the proposed improvement. The prosecutor testified that he knew this contract had been awarded to Sweeten & Son, and ignored the fact until this writ was applied for in January, 1909. Disregarding entirely the element of mala fides, to which some testimony has been directed, and which stands out quite prominently in this case, and not unmindful of Eggers v. Newark, 48 Vroom 198, we find it necessary only to sav for the purposes of the case that we are convinced that the prosecutor is upon this record guilty of laches and is estopped from complaining.

The rule is as stated by this court in McKevitt v. Hoboken, 16 Vroom 482.

“The larv requires diligence, and the party who stands by and sees á wmrk of this character in the course of construction (sewer improvement), attended by the incurrence of indebtedness, or the expenditure of money, wraives his right to take those objections, which, if promptly interposed, would have stopped the work and saved the expense.” Ware v. Rutherford, 26 Vroom 450; Cunningham v. Merchantville, 32 Id. 466; Carling v. Hoboken, 35 Id. 223.

For this reason the resolution in question is affirmed.