48 Iowa 681 | Iowa | 1875
Lead Opinion
I. It is conceded that the bridge is not constructed in accordance with the original written contract with Snodgrass. .It is also conceded that the written assent of the various members of the board of supervisors to a change in the plan of construction does not bind the county. Respecting this the court properly instructed the jury as follows:
1. contract : supervisors. “The first question for you to determine is whether the defendant consented to the change in the construction of said bridge as specified in the writing signed by said Joseph Carlisle and others. That writing purports -^g the act 0f ^iie parties signing it individually, although supervisors, and on its face and of itself does not bind the county. ”
It is necessary, therefore, that there should be, by the members of the board of supervisors, as such board, some recognition of the right to mate such change in the plan. For, as the board might, before the bridge was erected, have agreed to a change in the character of a structure, so they might during the process of erection, or after it was completed, assent to the changes made.
Hence it became a very material question in this case to .determine, inasmuch as the paper signed by the members of the board did not bind the county, whether the board of
“2. If, however, you find from a preponderance of the evidence that the defendant, by its board of supervisors, afterward, at a regular meeting, ratified and adopted the acts of the said Carlisle and others, as specified in said writing, then it will be bound thereby, and you are instructed that if you, find from the evidence that the plaintiff, in the spring and summer of 1869, constructed said bridge after the plan as changed in the said writing; that said Carlisle and others signing said writing constituted a majority of said board of supervisors on the 7th of September, 1869, and that on the said 7th of September, 1869, after said bridge was built, the said board of supervisors, at a meeting then held, appointed a committee consisting of Joseph Carlisle, Jacob McCully and S. C. Dunn, then members of said board, to examine said bridge, %oith authority to receive or reject the same after such examination, and with instructions to report at the subsequent October session of said hom'd thereon, you may from these facts infer a subsequent ratification of said change in the construction of said bridge, as indicated in said writing signed by said Joseph Carlisle and others, and set out in the first cou,nt of the petition. ”
The italics are ours. Down to the italics the instruction is clearly right. The remainder of it, we think, is erroneous. It is clear that an acceptance of the bridge after its completion by the board of supervisors would constitute a ratification of the change in the plan of construction. A committee, however, appointed by the board to examine the bridge, with authority to receive or reject the same after such examination, might either receive or reject the bridge. And it would be only their determination to receive the bridge that would amount, on the part of the board, to a ratification of the change. It certainly cannot be claimed that if said committee should, after examination, determine to reject the bridge, that never
The instruction, therefore, is equivalent to a direction that from the appointment of a committee to examine the bridge and accept or reject the same, and to report their action to a subsequent meeting of the board, the jury might infer a report in favor of the acceptance of the bridge.
The evidence shows that the report actually made by the committee was adverse to the acceptance of the bridge at the contract price, and hence equivalent to a report rejecting the same, unless it could be had for less than the contract price. The contract price was one thousand four hundred and twenty-five dollars. The committee reported that they considered the bridge worth one thousand dollars, andno more, and that they were willing to receive it by paying Mallory that sum. This is equivalent to saying that they were not willing to receive it and pay one thousand four hundred and twenty-five dollars therefor. In other words, they say we will not take this bridge under the contract and at the contract price, because it is not built as agreed, but we are willing to make a new contract therefor, and to take it at one thousand dollars. Yet, notwithstanding this evidence, the jury are told that from the appointment of this committee to examine, and to receive or reject the bridge, they might infer a ratification of the change in the construction, as indicated in the writing signed by Joseph Carlisle and others. This writing signed by Carlisle and others fixes the price.of the changed structure the same as that agreed to be paid Snodgrass, to-wit, one thousand four hundred and twenty-five dollars. A ratification by the board of the change agreed upon in this writing would amount to an agreement to pay therefor the original contract price; hence, if a ratification of the change is to be inferred from the appoihtment of the committee referred to, the county must pay for the bridge one thousand four hundred and twenty-five dollars, notwithstanding the
Appellee concedes that the use of the bridge by the inhabit-' ants of the county would not, of itself, be an acceptance, and that the acts alone of the individual members of the board of supervisors would not bind the county. But he claims that a majority of the board of supervisors, when in regular session, and in all respects acting with authority, did receive the bridge after it was built.
It is claimed that there can be no such thing as a conditional acceptance; that there either was an acceptance or there was not. In other words, that there either was an unconditional acceptance, or there was no acceptance. And from this position appellee concludes that when the board undertook to make a conditional acceptance they in fact made an unconditional one, whereas we the rather conclude that, if there is no middle ground, by making a conditional acceptance they did not make an unconditional one, and hence they made no acceptance.
A little scrutiny of the position of appellee will, we think, show its unsoundness. And, for illustration, we will not go beyond the facts of this case. A board of supervisors contracts for the erection of a bridge on a public highway, according to a plan agreed upon, at a stipulated price of one thousand four hundred and twenty-five dollars. The contractor erects the structure after a plan entirely different. The mere use of the bridge by the public does not create any implied agreement on the part of the county to pay therefor. In order that there may arise an implied contract to pay for work, the benefit of which is received, the party to be bound must be in a situation where he is entirely free to elect whether he will or not accept of the work. Zottman v. San Francisco, 20 Cal., 106. The bridge in question being on a public highway, the county has no election but to permit the same to be used so long as it remains there.
II. The court further instructed the jury as follows:
2_._. ! “4. If, therefore, you find that of the committee, consisting of said Joseph Carlisle, Jacob MeCully, and S. C. Dunn, referred to in my last instruction as appointed by said board of supervisors, on the 7th of September, 1869, to examine, and receive or reject, said bridge, a majority, to-wit, Joseph Carlisle and Jacob MeCully, -on the 20th of October, 1869, filed their report in favor of receiving said bridge of said Mallory, at the price of one thousand dollars, you will next inquire whether the said board subse-. quently adopted the recommendation of said committee, and, if yea, whether the plaintiff received said sum of one thousand dollars in full satisfaction of his claim against said county for constructing said bridge. * * *”
The instruction then sets forth a number of facts, which the jury are told would not' constitute an acceptance of the one thousand dollars in fuE, nor estop plaintiff from recovering more.
He was not, as we have seen, in a condition to recover anything, unless the county, by its board of supervisors, accepted the bridge. He could not compel them to accept. If, then, he could neither compel the board to accept the bridge, nor recover for constructing the same without their acceptance, it must follow that when they made their acceptance conditional upon his taking one thousand dollars therefor, the limitation of his recovery to that amount cannot be made to depend upon his receiving it in full satisfaction.
“6. If, under my previous instructions, you find that the plaintiff, in other respects, is entitled to recover from the defendant in this suit, and you also find, among the facts developed -by the evidence, that according to the plan and specifications referred to in the first count of the petition said bridge was to be fourteen feet wide, and that the same was so constructed as to width, you are instructed that that circumstance will not affect the plaintiff’s right of action. ”
In giving this instruction the court did not err.
The action of the board in contracting for a bridge less than the statutory width was erroneous simply, and not void. Knowles v. The City of Muscatine, 20 Iowa, 248, and cases cited.
The views which we have already expressed determine the principal questions involved in the appeal, and render a consideration of the remaining errors assigned unnecessary.
Eor the reasons before given the judgment must be
Reversed.
Rehearing
In a petition for rehearing our attention is called to the fact that the petition contains a count upon the quantum meruit, and it is insisted that under the instructions the jury must have found for the plaintiff under this count, and that the second instruction above considered could not have affected the case. Appellee, in support of this view, calls our attention to the following instruction of the court:
“5. Plaintiff’s counsel having admitted in the argument that the plaintiff has not constructed the bridge in controversy in a good, workmanlike manner, as required in the contract set up in the first count of his petition, you should, under his allegations in his second count in said petition, allow him a reasonable compensation therefor, as the same may appear from the testimony, not exceeding the contract price, to-wit: one thousand four hundred and twenty-five dollars, less the payment of one thousand dollars acknowledged in the petition, and what, if any, sum you may find from the evidence it would be necessary to make the same such a bridge in quality and value as you may find to be required by said contract ; but, if you find that the whole reasonable value of said bridge does not exceed one thousand dollars, the sum admitted to have been paid, you should find for the defendant. ” It is claimed that this instruction was not excepted to, and that it must be regarded as correct. We do not propose to consider the question of its correctness. It is evident that this instruction does not lose sight of the contract, nor contemplate a recovery independently of it. It directs the jury to allow a reasonable compensation, less what, if .any, sum they might find it would be necessary to make the bridge such an one in quality and value as required by the contract; hence it became very material to determine under what contract plaintiff was operating — whether under the original or the substituted one— and the question of ratification becomes an element in the right to recover, even under this instruction. Indeed, this*692 view is necessary to the harmony and consistency. of the charge. In the first instruction the court charges that the first question for the jury to consider is whether defendant consented to the change in the construction of the bridge; and in the next instruction they are directed that they may infer such consent from certain enumerated acts. It cannot, therefore, be supposed that in the fifth instruction the court intended to charge that a recovery might be had independently of such consent. The \yhole case, as we understand it, was put to the jury upon the theory that some ldnd of a ratification of the changes in the plans made by Joseph Carlisle and others was necessary upon the part of the board, in order that plaintiff might recover, and this we understand the original argument of appellee to concede. The court erred, as we hold, in the instructions respecting the circumstances from which a ratification might be inferred.
The right to recover ujdou the quantum meruit alone, independently of a ratification of the change in the contract, was not passed upon in the court below, and we do not deem it proper to determine it now, in the present state of the record. Whatever is said in the foregoing opinion respecting the necessity of an acceptance of the bridge, to the right of plaintiff to recover, is limited to the right to recover upon the theory of the ratification of the change .in the contract. Whether the plaintiff may recover upon the quantum meruit ■simply, without showing an acceptance of the- bridge by the county, we for the present leave undetermined.
Appellee does not claim that the second instruction given 'by the court is correct. That it may have affected the 'defendant prejudicially there can, we think, be no doubt.
The petition for rehearing is
Overruled.
