173 N.W. 743 | S.D. | 1919
Chapter 106, Laws of 1915, empowered boards of county commissioners to contract for the building and repair of bridges. Such law required the giving of notices for, and the filing of, sealed bids; that there should be a separate bid for each bridge to be built or repaired; and that each bid should be accompanied by a certified check in the amount of 10 per cent, of the bid. (Such law did not authorize a lump bid on several bridges; neither did it provide for the bidding or contracting for cost of /material or labor made necessary because of enforced changes in plans and specifications of bridges.. Beadle county gave notice that it would receive bids .for certain bridges and repairs, namely, six new bridges and repairs for one. Bids were' presented by several bidders, some bidding' on a part of the bridges and some on all. There were separate bids on each bridge and on the repair work; there were also lump bids both on the six bridges as well as on such bridges and the repairs for the seventh. Plaintiffs filed bids on each of three bridges. Defendant Iowa Bridge Company, hereafter called the “Bridge Company,” filed bids on each of the seven jobs, a lump bid for the six bridges, a lump bid for the whole seven jobs, and also a bid for extra work. The Bridge Company’s bids were not accompanied by a separate check for each bid, but were accompanied by a single check, the exact amount of which does not appear, but which was at least 10 per cent, of the lump sum bid on all seven jobs. The Bridge Company’s bid contained a reservation, reserving the right “to refuse to accept any award unless we are awarded contract for all the work.” Plaintiffs’ bids were the lowest separate bids on two of the bridges, but the Bridge Company’s lump bid on all seven jobs was considerably less than any com
This action was commenced against all the defendants other than the Bridge Company. The relief sought was the restraining of the county and its officers- from paying th'e Bridge Company any money on its contract with the county, and “for such other and further relief as to the court may seem .just and equitable.” • On March 22, 1917, the summons and an order to show cause why a restraining order should not issue restraining the payment of money on the contract were served. The order to show cause was heard and temporary injunction denied April 16, 1917. No separate appeal was taken from the order denying the temporary injunction, and the granting of such order is not' assigned as error on this appeal. An amended summons and complaint, joining the Bridge Company as party defendant, was delivered to the sheriff, for service April 12, 19x7, and served on the Bridge Company May 1, 1917: The cause was- tri.ed in July, 1917. Findings, conclusions, and judgment were for defendants. From such judgment and an order denying a new trial this appeal was taken.
Pending this appeal the contract was fully performed by both parties thereto, and, contending that there remained but a moot question, respondents moved the dismissal of the appeal. This was denied. See Clark v. Beadle County, 169 N. W. 23; Id., 170 N. W. 518. As will be seen from an examination of the above decisions, the merits of this appeal were in no manner, involved in the motion to dismiss.
The trial court concluded that appellants were guilty of laches in delaying the commencing of this action; that the)'', as taxpayers, had not been damaged or injured by the awarding of the contract to the Bridge Company; and that they should be held estopped from maintaining this action. We are of the view that there was no error in such conclusions.
The judgment and order appealed fro mare- affirmed.