214 Pa. 126 | Pa. | 1906
Opinion by
There is one controlling question in this case, and on the facts found by the trial judge, our view of it compels us to rule the case against the city. It is therefore unnecessary to discuss or determine the other questions raised on the record or to examine or review the testimony produced at the trial.
The bids or proposals were opened on December 30, 1903, and the contracts were awarded on December 31 for cleaning the streets of the entire city during the year 1904. For convenience in letting and performing the work, the city is divided into six street-cleaning districts. Contracts were awarded at the same time for doing the work in all the districts and aggregated the sum of $976,190. In the first four districts the contracts amounted in the aggregate to $734,000. The contract for the fourth district was awarded to the appellant for the sum of $239,000. On the day the contracts were awarded the city councils by ordinance appropriated the sum of $693,850 to pay “ for cleaning streets, inlets, private alleys, undedicated paved streets, public market houses and for the removal and disposal of ashes and house waste,” which sum so appropriated was $282,340 less than the total amount of contracts awarded for the work to be done in the city. Each of the successful bidders in all the districts was notified that he was a successful bidder for the contract for the work of his district and to commence the work on January 1, 1904. The appellant was notified by the chief of the bureau of street cleaning on January 1, 1904, that he was the “ lowest bidder at $239,000, and the contract was awarded to you (him), subject to an appropriation to be made by the city councils,” and that he was required to begin work immediately. On the same day he was also notified that the city solicitor would be requested to draw the contract and the appellant was notified to deposit ten per cent of the contract price in accordance with the specifications and proposal.
The appellant, by a letter dated January 2, 1904, and delivered the same day, notified the director of public works that he did not feel justified at that time, under the conditions as they then existed, to begin the work called for by the contract awarded him. On the same day, which was Saturday, the appellant was notified by the city solicitor to call on the following Monday, January 4, to execute “your bonds and contract
The appellant submitted his bid on December 24, 1903, and at the same time signed the proposal and specifications, and as required by ordinance also entered into a bond with a surety to the city in the penal sum of $500, conditioned “ That if the bid of the said John H. Hinkle, trading as aforesaid, is the lowest, and he shall decline to perform said work, that we will pay to the city the difference between the amount of his bid and the bid of them or him who shall actually perform said work.” One of the conditions contained in the specifications is: “ This proposal will hold good until an appropriation is made by city councils for the work to be done and the award will be made subject to an appropriation.”
After the contract for the work in the fourth district had been changed and awarded to the lowest bidder, the appellant demanded of the director of public works the return of his certified check, which was refused. This suit was then brought to recover $5,000, the sum called for in the check, with its interest. The case was tried before the court without a jury;
The burden was upon the appellee, under the pleadings, to show that the appellant had failed to observe the condition of his bond. We have referred above to the material facts in the case bearing upon that question, and they do not sustain the appellee’s contention. We are clearly of opinion that up to the time the director of public works changed the award and let the contract for the work to the next lower bidder, the appellant was not required, under the conditions then existing, to sign a contract to do the work on the terms of his bid. If he was not required to sign the contract, it follows that he was not required to do the work called for in his bid. That is clear from the statutory provisions regulating municipal contracts and our decisions construing them, and is substantially admitted in the printed brief of appellee’s counsel. It is there said : “ The fact is, he (plaintiff) first declined (very properly) to do the work until the contract was signed; and then declined to sign the contract when it was tendered.” Was the appellant legally justified in declining to execute the contract ?
The statutes and city ordinances made in pursuance thereof provide when, and the manner in which, city contracts shall be made, and we have frequently and uniformally held that a valid contract cannot be entered into without a strict adher
Under these statutory provisions, which are mandatory, it is manifest that the city was not in position to enter into the contract for the street cleaning of the fourth district on January 5,1904, when it changed the appellant’s award and denied him the opportunity and the right of executing a contract for the work. As we have seen, the aggregate of the contracts for cleaning the streets in the city awarded December 31,1903, was $976,190. On the same day the councils appropriated $693,850, which, as the trial court held, was “ for the purpose of cleaning the streets and removing the ashes in the city of Philadelphia, which covered the whole of the six districts, in which the bids amounted to $976,190, (and) that no further appropriation was made by councils to pay for the balance of the work until the 17th day of February, 1904.” In other words, the appropriation made by the councils for cleaning the streets of the city were $282,340 less than the accepted bids for the work. These were the conditions which existed at the time the appellant declined to enter into a. contract for the work for which he had submitted a proposal. The court held, however, that these conditions did not relieve the appellant, that the appropriation was sufficient to cover his bid, and that complied with the statutory provisions requiring a prior appropriation to be made for the work. The learned judge’s reason for his conclusion on this point is stated by him as follows : “ Our view of the law coincides with the view expressed by the city controller when on the stand in this case, to the effect that he would be justified in certifying all contracts sent to him, under the words of this particular appropriation, up to the amount of the appropriation, but not beyond the same.” But this view overlooks and disregards, not only the mandatory provisions of the statute but also the explicit language of the appropriation for the work, which is as follows: “For cleaning streets, inlets, private alleys, undedicated paved streets, public market houses and for the removal and disposal of ashes and house waste, $693,850.” This appropriation, as held by the trial judge, clearly covered the work to be done in the whole city and not any special district thereof, and payment out of it could be demanded for work in any of the six street-cleaning districts of
It is said by the court below in support of its position that at the time the city demanded that the appellant enter into a contract, “ the other contracts for street cleaning had not been entered into, and the city, for its own reasons, did not execute those contracts or call upon the other contractors so to do until February, 1904, satisfactory arrangements having been made in the other districts to carry on the necessary work pending the actual execution of the contracts.” By what authority, however, did the city officials postpone the letting of the contracts in the other districts ? And what reason had the appellant to believe that they would disregard their duty in this respect and neglect or refuse for more than a month to sign contracts with the successful bidders in the other five districts and certify the amounts of those contracts against the insufficient appropriation? It is found as a fact by the trial judge that on December 31,1903, the day the contracts were awarded,
The appellant’s bid as well as the award to him were made subject to a sufficient appropriation to cover the work. Both the city and the appellant in the bid and the award recognized the necessity for an appropriation to give validity to the contract. In the specifications furnished by the city and subject to which the proposal was submitted appears the following condition: “ This proposal will hold good until an appropriation is made by the city councils for the work to be done and the award will be
We are of the opinion that a contract for cleaning the streets of one part of the city could not legally be made until an appropriation had previously been made sufficient to pay all the contracts awarded at the same time on December 81, 1903, for the work in that department of the city, and that until such an appropriation had been made, the appellant was not required to sign a contract to do the work of the fourth district in pursuance of his proposal. It follows that he was not in default in declining to sign the contract presented by the city and hence was not in default in refusing to commence the work. There was, therefore, no breach of the appellant’s proposal bond which could be interposed as a defense to his action for the recovery of his deposit and judgment should have been entered for him by the trial judge.
The sixth, ninth, eleventh, thirteenth, fourteenth, fifteenth and thirty-second assignments of error are sustained, the judgment is reversed, and the court below is directed to enter judgment in favor of the appellant and against the appellee for $5,000, with interest from January 5, 1904, and costs.