149 Mo. App. 609 | Mo. Ct. App. | 1910
Action on common count for one thousand dollars, money had and received, by defendant to the use of plaintiff, to which a general .denial was filed. Prior to February 4, 1907, the voters of the city of Cape Girardeau, a city of the third class, had adopt
“The undersigned further propose and agree that if awarded contract and the above proposal, I will make the required bond within twenty days from date of award and Avill begin the actual work of construction Avithin thirty days from said date, or if I should fail to do so, the inclosed certified check for $1000 shall be forfeited to the city of Cape Girardeau as confessed and liquidated damages resulting from said failure.
“The undersigned hereby declare that the parties whose names are given below are the only persons financially interested in this proposal; that it is made in good faith without collusion or fraud; and that if the contract is awarded to me. such contract will be executed in a*613 strictly first-class, good and workmanlike manner and in full conformity with yonr specifications hereto attached.”
That proposition was signed by plaintiff who gave his place of business as East St. Louis, and inclosed with his proposal a check for $1000, dated February 2, 1907, payable to Wm. H. Coerver, mayor of Cape Girardeau, as provided for in the ordinance and the instructions how to bid, which were attached to the ordinance as part of it and hence would become part of the contract for the work when the contract was made with the successful bidder; for the ordinance entered into the contract as an integral part of the latter. February 4, 1907, or two days after plaintiff’s bid was submitted, it was accepted by a resolution of the city council of Cape Girardeau, conditioned on plaintiff’s filing his bond' for one-third the amount of his bid, as required by the ordinance. The resolution authorized the mayor to approve the contract with plaintiff in the name of the City and to approve the bond he might submit. Section 7 of the ordinance providing for the construction of sewers, read as follows regarding the deposit which should accompany each bid:
“Each proposal shall have enclosed with it a certified check for $1000, payable- to the order of Wm. H. Coerver, mayor, which shall be retained as a guaranty of good faith on the part of the bidder, until the bidder to whom the contract may be awarded, shall have entered into contract and executed satisfactory bond as hereinafter required, when said checks will be returned.”
. Minute printed instructions were sent to all persons proposing to bid on the work regarding how bids should be made and what they should cover, and. said they should cover not only the cost of the work and material for constructing the sewers, but also the cost of such engineering and inspection work as might be required during the contract; saying further each bid should have inclosed with it a check for one thousand
“The following proposal and acceptance thereof, when properly filled out and signed in duplicate by the contractor, party of the first part, and by the mayor and city clerk of Cape Girardeau, party of the second part, shall constitute a legal and binding contract between said parties; and the foregoing specifications and instructions to bidder shall constitute a part of said contract. No verbal agreements contrary to said specifications and proposal, shall be of any force or effect, but all changes or variations from said specifications and contract shall be in writing and duly signed by both parties to the agreement.”
Next followed in the instructions the form of the proposal, and these clauses were also contained therein:
“Section 6. A good and satisfactory surety bond amounting to one-third of the amount of the contract and subject to the approval of the mayor and city clerk of Gape Girardeau will be required of bidder to whom contract may be awarded. Said bond shall be furnished within twenty days after receiving the award. It shall fully guarantee and indemnify the city of Gape Girardeau and the city council thereof against any and all damage or loss which may in anywise result from the connection of said city with the-contractor or by reason of his failure to fully and faithfully carry out the provisions of his contract.
“Section 7. Bidders will be expected to make such personal examination of the existing conditions as will enable them to bid intelligently.”
It will be perceived plaintiff was required to furnish a bond to the amount of one-third of the amount
“Change in Plans. The board through the engineer, shall have the right to make any changes in the lines, plans, forms, or quantity of the work herein contem*616 plated, either before or after the commencement of the work, giving dne notice to the contractor, in writing, of any such changes. If such changes diminish the quantity of the work to be done, they shall not constitute a claim for anticipated profits; if they increase the quantity of work, such increase shall be paid for upon the basis of the unit prices stipulated in the contract. Such proportions of said increased work as may not be covered by the unit prices, will be classed as extra work, and will be paid, for as hereinafter provided.
“It is distinctly understood and agreed, however, that such changes in plans or quantities shall not be construed as in any sense vitiating or modifying the contract or relieving the contractor in any degree from the responsibilities of his contract; except that any material increase in the quantity of work will be considered sufficient ground for granting an extension of time in proportion to such increase.
“The board, however, shall not increase the amount or cost of the work beyond the estimate referred to in Ordinance No. 738, and the contractor shall be allowed extra payment for the cost of engineering and inspection during the time required to execute the increased work.”
Plaintiff was willing to execute the bond and contract as soon as the city acquired the right of way across the private lots, and so notified the officials. He left Cape Girardeau and did not return again until the last day of the period during which he might execute and file the bond and contract; and then learned nothing had been done toward acquiring the right of way over those lots; the mayor saying he had forgotton about the matter, and in consequence plaintiff refused to file a bond, sign the contract or enter upon the execution of the work; refused also to attend a special meeting of the council to consider the situation. The ordinance provided plaintiff should be paid exclusively in taxbills; provided, further, the work should be carried on continu
By the very words of plaintiff’s bid the amount deposited by him became stipulated damages, to be forfeited to the city if, in the event the contract was awarded to him, he failed to execute the bond called for by the contract within twenty days after the award and begin actual work within thirty days. As to whether the one thousand dollars was to be penalty or liquidated damages, we have no doubt the intention was to agree on the damages; what the city would lose by plaintiff’s failure to sign the bond and contract and enter on the execution of the work could not be readily measured and the amount to be forfeited was not unreasonable. Those facts justify the ruling that the amount was stipulated damages. [Morse v. Rathburn, 42 Mo. 594.] Plaintiff agreed if awarded the contract, he would make the bond within twenty days thereafter and begin actual construction in thirty days. His excuse for not complying with this undertaking is that he ascertained meanwhile the plan of the sewer system required sewers to be laid across private property, a fact of which he was ignorant when he bid. There was no mutual mistake regarding this fact, for the city officials had appointed a committee to negotiate with the owners of the lots about right of way, and hence the officials were aware the right of way had not been procured. This circumstance cannot avail plaintiff as a reason why he should not carry out his agreement to make the bond, and begin work under the contract, unless, in contemplation of law, it was a total breach' by the city of its obligation, or would render performance by plaintiff an impossibility. The city had
The judgment is reversed.