211 Pa. 394 | Pa. | 1905
Opinion bt
There is no dispute about the facts in this case. They are distinctly found by the referee, and his findings were not disturbed by the court below.
In March, 1895, Walter B. Jones, who was then surveyor of the ninth survey district of the city of Philadelphia, in compliance with a request from the bureau of highways, made estimates, under a survey previously made by him, of the amount of fill and cut that would be required in grading Lincoln avenue to the established grade between Wayne and Green streets. By his survey, and his calculations and estimates based on it, he found that 74,339 cubic yards of fill and 1,190 cubic yards of cut would be required in the grading of the avenue. These estimates were regularly entered in the estimate book in the office of the surveyor, and, with
In November, 1895, eight months after Jones had made his estimates, the bureau of highways advertised for proposals for the grading of Lincoln avenue, between Wayne and Green streets. The plaintiff applied to the bureau for information as to the character and quantity of the work, and was sent by the chief clerk to the office of Wagner, the district surveyor, where he was directed to the bulletin on the wall, which announced the quantity of cut and fill that would be required. The estimates on the bulletin were those which had been made by Jones in the previous spring, and had apparently been verified and accepted or adopted by Wagner, his successor, who testified that “ they were the estimates upon which the contractors got their information for the purpose of bidding’.” They were, therefore, at the time the plaintiff applied for information, as found by the referee, “ the official figures on which any contract was then to be based.” On them as a basis the plaintiff submitted his bid of forty-nine cents per cubic yard for the work, being the lowest of several bidders.
On May 7, 1897—nearly eighteen months after his bid had been submitted—the appellant was notified by the city solicitor’s department that a contract for grading Lincoln avenue “ according to your bid of 1895 ” was ready for execution, and four days later a notice came to him from the bureau of highways to “ proceed at once with the work of grading Lincoln avenue from Wayne avenue to Green street, under the contract awarded you 11 /19/95.”
Between the date of the plaintiff’s proposal and that of the notice to him that the contract was ready for execution and that he should proceed with the work, without any information having been given to him, and without his knowledge, according to his uncontradicted testimony, Wagner made a resurvey of Lincoln avenue between the points stated. This resurvey was made in the month of April, 1897, and resulted in an estimate of 52,469 cubic yards of fill and 1,656 yards of cut—a difference in the estimate of fill an
The resurvey and the calculations by Wagner were clearly erroneous and grossly inaccurate. What may account for the great discrepancy between the calculations and estimates of the two surveyors, Jones and Wagner, is not important, though discussed by the referee, for his finding is that the survey, calculations and estimates of Jones were correct, and those of Wagner were not. Nor need we consider the contention of the plaintiff before the referee, that there was a scheme by certain subordinate municipal officers Jo compel the appellant to withdraw as the lowest bidder, or to punish him if he did not. The finding is that he furnished and used 77,000 cubic
Though no reason was given by the court for overruling the referee’s conclusion that the plaintiff ought to be paid for the work actually done at the cubic yard price agreed upon, it is to be assumed the city’s contention was sustained, that the plaintiff had not, by a contract in writing, established his right to recover what he claimed. “All contracts relating to city affairs shall be in writing, signed and executed in the name of the city,” are the words of the Act of June 1, 1885, P. L. 37 ; and there can be no recovery from the city of Philadelphia on a contract that is not in writing. No attempt to make it liable on contractual relations not established, as directed by the mandatory words of the statute, has yet succeeded, and none will succeed while it remains the written law. This is so well known that none of our cases on the subject needs be cited.
But there is a contract in writing here, and the claim of the plaintiff is not for anything that he did not do under it. He is not asking to be paid for extra work, or for compensation for anything that he did for which the contract does not provide, and the two cases of McManus v. Philadelphia, 201 Pa. 619 and 632, chiefly relied on by the city, are not in point. On May 7, 1897, the city notified the plaintiff that a contract was ready for execution by him according to his bid made in 1895. On the same day he executed it, and in it the city agreed to pay him forty-nine cents per cubic yard for cut and fill. Here are the clearly expressed intentions of both parties that the work should be done by the cubic yard and the promise of the city to so pay for it; and, with absolutely no knowledge by the appellant of the changes in the estimates that had been erroneously made by the surveyor, Wagner, he signed
On the same day' that the judgment was directed to be entered the city presented a petition for an order to prevent the plaintiff from collecting it until the claim of James V. Watson for the amount due on it was passed upon in a proceeding on the equity side of the court. Apparently with no notice to the plaintiff of the presentation of this petition, an order was made staying execution on the judgment until the final disposi
All of the assignments are sustained and the record is remitted with direction that judgment be entered for the plaintiff on the report of the referee, with leave to the city to ask for a rule to show cause why it should not be permitted to pay the money into coúrt.