211 Pa. 85 | Pa. | 1905
Opinion by
The relator, Curran, entered into a contract with the city of Philadelphia to clean certain streets during the year 1903 for the sum of $172,000 and in compliance with the requirements of his contract and the ordinance of December 24, 1881, he deposited ten per cent of the contract amount, to wit: $17,200, in cash with the city treasurer. He also gave bond with security under other ordinances for the performance of his con
The first question is whether mandamus will lie. That depends on the terms of the deposit, and the nature of the duty to return it. The claim of appellant is that the deposit is not a general security for due performance of the contract, that being provided by the bond with surety, but is a special and limited security to enable the director of public works to have done promptly any work which the contractor has neglected and to pay for the same by drawing on such special fund. At the end of the year if the fund has not been drawn upon for that purpose the contention is that the function of the fund has ended and the duty of returning it is absolute and ministerial, and the facts not being disputed the duty may therefore be enforced by mandamus.
In support of this view it is urged that the general regulations for proposals subject to which the contract was made, provided inter alia that:
“ 1. Contractors shall, within ten days after the award of the contract, deposit with the city treasurer ten per cent of the amount of each contract awarded, in cash, and also enter into bond, as provided by ordinance, to be approved by the city solicitor, in one half the amount of such contract. A penal bond in proportionate amount of contract is also required.” And further:
“9. Failure to comply with any part of the contract, or of these specifications shall be cause for the director of the department of public works, without notice to the contractor, to employ sufficient force to have the work contracted for properly done, and to pay for the same out of the fund deposited as a security by the contractor.”
The contract itself provides, “ And if, upon the 31st day of December 1903, the said contract be completed to the satisfaction of the said director, then the said party of the second part shall be given an order upon the said city treasurer for the surrender of the ten per centum deposited as a guarantee for the faithful performance of the same.”
Then as bearing on the general security for performance it
If the contention of appellant, thus set forth, is sound, that the deposit was not a part of the general security for the city but an additional special and limited security only to furnish an available fund to enable the city'to have omitted work done promptly, and the contract time having expired without any of it being so used, then it is quite clear that the purpose of the deposit was ended, and the duty to return it was absolute and ministerial. In such case mandamus to the official would lie.
On the parts of the contract thus far mentioned, appellant’s case makes a strong presentation. But other parts do not look the same way, especially when viewed in connection with the acts of the parties. Thus when appellant paid in the deposit to the city treasurer, he accepted a receipt for it in the following form, “ said amount being deposited with the city treasurer as a guarantee of the performance of the said contract and with this distinct understanding and agreement, to wit: That if said James Curran shall fail to comply with all the terms of said
Further, the contract itself as already quoted provides that the order for the surrender of the ten per centum deposited as a guarantee for the faithful performance of the same shall be given if “the said contract ” shall be completed “ to the satisfaction of the director.”
Both parties thus seem to have assumed at the time that the satisfaction of the director with the completion of the whole contract was a factor in regard to the return of this deposit as well as in regard to the general security under the bonds. And when we turn to the ordinance requiring the deposit, we find that that is apparently the intent of the requirement. Its language is “ cotemporaneous with the execution of the contract, 10 per cent of the amount of the contract shall be deposited with the treasurer to secure the fulfillment of said contract, said deposit to be returned at the end of the contract if there be no default.”. As this is the law under which the contract was entered into, and everything in connection with it was done, its provisions are decisive and must govern the interpretation.
We are brought, therefore, to the conclusion that the ten per cent deposit was not merely to furnish a quick and convenient special remedy, but was an additional and cumulative security for the performance of the whole contract. This being so the question of satisfactory performance is one involving the discretion of the director of public works and, therefore, mandamus will not lie.
Judgment affirmed.