24 Ill. 27 | Ill. | 1860
The only question in this case is, whether Shores could have been substituted for Mathews in the contract with the Post Office Department, upon the accepted bid of Mathews. If it was competent for the department to make such a substitution, then it was the duty of Shores to procure it to be done by the department, and to execute a contract with the government in place of Mathews. Upon the most careful examination of the Post Office laws, we did not feel satisfied as to whether they permitted such a substitution as the contract set-forth in the second count of the declaration contemplated, and thought it safer to rely upon, and be governed by the rules and practice of the department. Hence we applied to the Post Master General for information on the subject, and learn that the Post Office laws are' so constructed as to permit the department to accept a substitute in place of the party whose bid was accepted, and to execute the contract with the substitute instead of the bidder, and that such is the constant practice of the department; and we are furnished with blanks to be filled up and executed by the parties, upon which the department acts in accepting the substitute and executing the final contract with him. However we might be inclined to construe these statutes, were it an entirely new question, we cannot doubt as to the propriety of our adopting this construction, so acted upon by the department. Even if the department has adopted a wrong construction, yet it shows that it was practicable for the defendant to have fulfilled his agreement with the plaintiff, by getting himself substituted for him in the contract. And we are not prepared to say that it would have been unlawful to have done so. If the contract was lawful, then the count was good.
We think the court erred in instructing the jury to disregard the second count, and the judgment must be reversed, and the cause remanded.
Judgment reversed.