75 F. 547 | U.S. Circuit Court for the District of Oregon | 1896
This is a suit for an accounting for the profits earned on a contract to construct a pipe liné by which the city of Portland is supplied with water. The water committee representing the city having advertised for bids to construct the line, the parties hereto entered into an agreement by which the defendant, on their joint account, bid for the work in the name of Hoffman & Bates. The complainant, with the knowledge and concurrence of the defendant, made a separate bid in the name of the San Francisco Bridge Company, a company controlled by him. This bid was some $49,000 higher than the bid of the defendant, and was not seriously made. The contract having been awarded to the defendant, a written agreement was entered into by the parties for the execution on joint account of the contract to be entered into by the defendant with the city. The contract awarded on defendant’s bid was formally entered into by the city water committee, of the one part, and by the defendant, in the name of Hoffman & Bates, of the other. The contract proved a profitable one, the profits thereunder amounting to nearly $140,000. The defendant refused to account to the plaintiff for any part of these profits, upon the ground thát the agreement for a joint bid tended, under the circumstances, to lessen competition, and operated as a fraud upon the city, and therefore will not be enforced in equity, and upon the further ground that the complainant wholly failed to comply with the contract between the parties, and refused to perform the conditions upon which the defendant’s agreement to share the earnings of the contract with complainant was made. In this case the contract was in fact the joint contract of these two parties. However immoral the means by which the award of that contract was secured to them, it does not lie in the mouth of either to dispute
When these questions were considered by me on the exceptions to the answer (69 Fed. 509), I was of opinion that it was within the principle of those cases involving agreements for a division of the fees of public offices and for compensation for services in lobbying. This) I am convinced, wars an erroneous view of the question. In one-of those cases the court is asked to comped, by its judgment, the very thing prohibited by public policy, while in the other it is asked to compel payment for a service forbidden by such policy. The question of division of profits between two parties having equal rights is a very different one. The distribution of the profits of this contract, which are as much the property of one of the parties as of the other, does not violate any rule of morals or of public policy. Moreover, the case ou the facts differs materially from that presented on the exceptions to the answer. It is alleged in the answer that the plaintiff was prepared to hid, and, hut for the secret agreement alleged to have been made, would have hid, for the work, at a figure some $40,000 less than that at which the contract was let. This put the plaintiff in the position of seeking to recover in the suit for withholding a lower bid, by which the work was made to cost much more than it would otherwise have cost, and brought the case within the principle of Atcheson v. Mallon, 43 X. Y. 150, cited and relied on by defendant. In that case each of the parties had intended to make a proposal on his own account, hut, by an agreement between them to share equally in the profits of an award made to either, one of them had been removed from the number of earnest bidders, thus lessening competition, to the public detriment. Folger, J., in delivering the opinion of the court, said:
“If Mallon had promised Atcheson a sum of money if he would refrain from making any proposal, and Atcheson, relying upon’it, had made none, and then had sought to enforce the agreement, there can be no doubt that the law would hare held the promise void. And why? No-t out of any con*550 sideration for the parties to .it, but because its effect was to remove Atcheson from the number of earnest bidders, and thus, by lessening competition, to detriment the public. And the agreement which was made, laying- open to Mallon just what was the judgment of Atcheson of a profitable bid, and removing in effect an interested rival, tended to affect Mallon’s action. While Atcheson, confident that, if Mallon succeeded, it was also his own success, lost the impulse to a real competition with him. It seems beyond cavil that the agreement is obnoxious to the rule above stated, and such agreements courts refuse to. enforce.”
In this case the uncontradicted fact is that McMullen did not intend to bid for the work in question otherwise than jointly with Hoffman; that he came from San Francisco to bid with Hoffman, not to compete with him; and that this.was in pursuance of an understanding had between the parties long before. The agreement was merely to secure co-operation between the parties, and, so far from tending to lessen competition, it tended to increase the number of bidders, since it does not appear that either of the parties intended to bid or would have bid on his own account. However this may be, it does appear that the effect of the agreement was to cause, through McMullen’s influence, a very much lower bid than Hoffman would have made had he bid on his own account. Hoffman stated to one of the witnesses in the case that McMullen “made him come down between $40,000 and $50,000”jn the bid upon which the contract was awarded. It appears that McMullen had procured from' his engineer in New York estimates of the cost of the work, and that the amount of such estimate was $416,088, and there was testimony tending to show that this estimate included $80,500 as profits. It also appears that Hoffman’s engineer at Portland, upon careful estimates, concluded that the work could be done for $420,-000. What, if anything, was allowed for profit in this estimate does not appear. The defendant’s counsel argues from these facts that the knowledge of each of these parties that this work could be done at a figure far below the bid agreed on, and yet leave a large margin for profit, would have caused them to make much lower bids if they had been bidding in competition than the joint bid made in the name of Hoffman & Bates. But it does not follow that, in the absence of an agreement to bid jointly, any such several bids would have been made, or that estimates would have been procured; nor is it a ground of complaint that the parties had the advice of capable engineers, and were able to know beforehand that the work could be done for $416,000, and leave a profit of at least $80,000. They were under no moral obligation to lower their bid because of the information they had procured, nor in any manner to give the city the benefit of the knowledge they had acquired at their own expense, even if the means of such knowledge was not within the city’s reach.
There is nothing to criticise in what was done by the parties, unless their conduct in presenting a second bid in the name of the San Francisco Bridge Company operated as a fraud on the committee. When this matter was considered on the exceptions to the answer, I was of the opinion that this was the effect of the second bid. It appeared from the pleadings that the profits from the con
In the accounting, the only question of serious contest is as to 1he amount to he allowed Hoffman for his services in conducting the business of the parties under their contract. Hoffman claimed and credited himself at the rate of $1,000 per month for his services. In fixing the amount to be allowed on this account, the responsibility assumed by Hoffman is to be considered. McMullen wholly failed to contribute his share or any share, above a plant, valued at $2,000, to the work being carried on. Hoffman made repeated and urgent appeals to McMullen for the money that the latter was in duty bound to provide. To these appeals McMullen had always the same answer, which was that he did not have the money then, and could not obtain it. On one occasion he suggested that Hoffman should stand the creditors of the partnership off, and he suggested at different times the means by which Hoffman might raise the needed money on their joint note. It is argued for McMullen that Hoffman had credit at the banks, and could borrow what money was needed, but that does not excuse McMullen for failure to fulfill the obligations he was under. Hoffman was not required to use his own credit for McMullen’s benefit. McMullen was a nonresident. His company was insolvent. He was without credit, and it is not against Hoffman that his own credit was good. McMullen’s name upon a joint note would be of no assistance to Hoffman in procur
There was such an entire failure on McMullen’s part to fulfill his obligations in the contract that Hoffman would, in my judgment, have been justified in treating the contract as abandoned by McMullen; and this was threatened. It is only from the fact that Hoffman continued to recognize McMullen’s relation in the business, by regularly charging for Ms own services, that I am justified in treating the partnersMp relation as having continued. The entire burden was upon Hoffman, and it involved not only the conduct of the business of constructing the work, but all the money responsibility that attached to it; and this goes to increase the amount to which Hoffman is in good conscience entitled for his services, on which account he is entitled to be paid at the rate charged.
