29 Ind. App. 12 | Ind. Ct. App. | 1902
The amended first and second paragraphs of the complaint of the appellants were each held insufficient on demurrer. In the first paragraph it was shown that the appellants were partners whose principal place of business was Dowagiac, Michigan, their business being that of putting in water-works plants for cities and towns, and especially putting in the pipes used for such work; and the appellee was a duly incorporated town; that in December, Í892, the board of trustees of the town, pursuant to a petition signed by more than 100 freeholders and resident taxpayers of the town, ordered an election with respect to a proposed system of water-works for the town, at which the
It was further alleged that the board, having so adopted plans and specifications, and having thus given notice, decided, on the 25th of April, 1893, to purchase the pipe for the system, and that it would let only the laying of the pipe, with the necessary work of putting it down and furnishing
It was alleged that it was stipulated in said contract that the appellants would lay the pipes for the system of water-works as proposed in said town, to the extent of seven and one-fourth miles, furnishing all lead, hemp, and all tools necessary, ■ and labor, and lay the pipe in the best possible manner, for the following prices: Oast iron pipe, etc., setting out the prices as in the bid of the appellants, they setting all gates, gate-boxes, specials and hydrants, without extra cost to the corporation, for the aggregate sum of $5,200; that they would begin the work as soon as
The paragraphs discussed present no suggestion of fraud in the failure or refusal to execute a contract as agreed upon. It is claimed, on behalf of the appellants, that the board of trustees being shown to have awarded a contract to the appellants, this created a binding obligation on the part of the appellee subsequently to execute a contract.
By statute of 1879, §4250 ei seq. Burns 1901, authority was provided for the construction and maintenance of water-works by cities and incorporated towns having a population less than 45,000, provision being made for a board to be known as trustees of the water-works. By §13 of that act, §4264 Burns 1901, the trustees of the waterworks were authorized “to make contracts for the erection of water-works buildings, * * * for the purchase of machinery and the manufacture and laying down of pipe; * * * and for all other purposes necessary to the full and efficient management and construction of the waterworks; and such contracts shall be subject to the ratification by'the common council [or board of trustees].” By §17, §4268 Burns 1901, it was provided: “Said trustees,
By a statute of 1891, §4256, 4257 Bums 1894, it was enacted: “§1. That the office of and board of water-works trastees in cities and incorporated towns of less than 5,000 population [of which the town of Rochester is one] be and the same are hereby abolished.” By §2 of this statute it was enacted that in such cities and towns, “the city common council, or the trustees of incorporated towns, may construct, conduct, manage, and control their own respective water-works,” etc.
The requirements of the act of 1879 relating to the making of contracts by the trustees of water-works are therefore applicable to the board of trustees of the town, except the provisions relating to ratification of contracts of the trustees of the water-works and the approval of bonds, the giving of which it was their duty to require,
In connection with the entry of record of the awarding of the contract, as shown by the complaint, it appears that the board directed its attorney “to prepare a contract for said work, and forward the same to” the appellants, which he did. It does not appear that the board executed this contract, or dictated its provisions, or had knowledge even of the contents of the instrument. The attorney was directed to prepare “a contract.” This, of course, did not make the appellee a party to the contract. On the contrary, considering the statute and the action of the board together, it is indicated that the board reserved its right to exercise its discretion to “decline to contract.”
In bidding for the work, and in signing the contract, and offering the bond, the appellants were charged with knowledge of the powers and duties of the officers of the municipal corporation under the law; and were bound to know that all the various acts of the board of trustees and all their own acts in the premises were but steps leading up to the necessary contract, and would be ineffectual for any purpose unless a contract were executed by the municipal corporation, through its official agents, pursuant to the statute.
While the work here contemplated was to be undertaken in the interest of the community, the system of waterworks was to be the property of the corporation, and under its control and management as corporation property, and the corporation was to use it for its own benefit, and was 'to derive therefrom a special revenue. The making of a contract for construction of such works was not the exercise of any of those continuing legislative or governmental powers which may not be ceded away so as to deprive the public corporation of future performance of its duties to the public on behalf of the State. On the contrary, such an engagement would constitute a contract, and, therefore,
It is tbe manifest meaning of tbe statute that tbe contract provided for thereby shall be a contract in writing, and it sufficiently appears to have been tbe purpose of tbe parties that tbe terms agreed upon by them should be reduced to writing, and should be signed by them, before tbe contract would be considered as completely made; and where such is tbe case, especially if one of tbe parties be acting in a public capacity, all that goes before such completion must be regarded as negotiations for a contract or steps leading to a contract. When all was done, something remained to complete tbe contemplated contract. Water Commissioners v. Brown, 32 N. J. L. 504; People’s Railroad v. Memphis Railroad, 10 Wall. 38, 19 L. Ed. 844; Dunham v. City of Boston, 94 Mass. 375; Bridge Works v. Bristol, 170 Mass. 528, 49 N. E. 918.
Being of tbe opinion, upon tbe foregoing considerations, that tbe complaint does not show a breach of contract or an actionable violation of duty on tbe part of tbe appellee, we need not discuss tbe form of tbe complaint or tbe subject of damages.
Judgment affirmed.