21 S.D. 261 | S.D. | 1907
The plaintiff, the city of Milbank, instituted this action against the defendants to recover on the bond executed by them the amount of loss sustained by the plaintiff by reason of the defendant McDonald’s failure to carry out his contract to construct a system of sewerage in that city. A directed verdict and judgment being in favor of the plaintiff, the defendant, the Western Surety Company, has appealed.
It is disclosed by the record that the city of Milbank, in the summer of 1904, undertook the construction of a sewerage system, and that the contract for the same was let to one A. D. McDonald. To secure the performance of the contract of the said McDonald the appellant executed a bond with the Sioux Falls Construction Company in the sum of $7,000 for the faithful execution of such contract. The contract was let to McDonald, as the lowest bidder, for the sum of $11,276.35; but before the said contract was executed McDonald, claiming that he had made a mistake in his bid was awarded a further sum of $1,000, without any new advertisement for bids having been made. McDonald entered upon the performance of the contract and, after completing about 500 feet of the main sewer, he abandoned the same, giving the city notice that he would proceed no further. Thereupon the city notified the appellant company of such default within the time specified in the bond,
It is contended by the apellant that the complaint is insufficient, for the reason that it is sought to hold the appellant responsible for the acts of A. D. McDonald, whereas in the bond it became surety only for the Sioux Falls Construction Company; but it is alleged in the complaint “that at the times hereinafter mentioned the defendant A. D. McDonald, was doing business, and executed the contract hereinafter mentioned under the name and style of the Sioux Falls Construction Company.” This we think was clearly sufficient as showing that, while the bond was nominally executed by the Sioux Falls Construction Company, the same was in effect executed by A. D. McDonald, and that appellant may properly be held as having entered into' the bond as surety with the said McDonald as principal. Herminston v. Green, 11 S. D. 31, 75 N. W. 819. It is further contended by the appellant that the failure to allege in the complaint that the form of the contract was approved by the city attorney rendered the contract void; but the complaint seems to have been amended on the trial to correspond with the proof that the city attorney did m fact approve the form of the contract. This evidence, we are of the opinion, was admissible, as the requirement of the statute that the contract shall be approved by the city attorney does not provide that the contract should be void in case such approval is not indorsed thereon, and the provision may be regarded as directory, and not mandatory. It is further contended that the complaint was insufficient, for the
On a motion made by the appellant to direct a verdict in its favor, it was further claimed that the evidence was insufficient to entitle the plaintiff to recover, for the reason that it did not appear by the records of such council that the contract was ordered to be executed by an affirmative vote of a majority of the council; and also that the evidence affirmatively shows that said council without readvertising added $1,000 to the price bid by the said McDonald, and also completed said contract without letting any new contract or advertising for bids therefor. The last contention was very fully discussed by the Court of Appeals of New York in the case of In the Matter of the Petition of John G. Leeds to Vacate an Assessment, 53 N. Y. 400, in which that learned court held that the requirement of the charter of the city of Brooklyn, that contracts should be let to the lowest bidder, after due advertisement, was not applicable' to a contract that had been abandoned, and in such a case the city might proceed to complete the work without further advertising. The court in its opinion, speaking by Chief Justice Church, says: “The laws of 1859 * * * providing for laying out sewer districts in the city of Brooklyn, authorizes commissioners to advertise and let the work to the lowest bidder and contains the following provision: The said commissioners shall, in no^ case, proceed with the construction of any sewer except upon the advertisement for proposals for the construction of the same as herein provided. This provision, I think, applies only to the contract for
We are of the opinion that the court was right in directing a verdict in favor of the plaintiff, and in denying appellant’s motion for a direction of the verdict in appellant’s favor.
The verdict and judgment are affirmed.