109 So. 816 | La. | 1926
This case comes before us on appeal from a judgment against plaintiff on the merits; the defendant has answered the appeal, praying that its exception of no cause of action be sustained.
As we think the exception is well taken, and as in fact the supplemental petition and *1004 the trial on the merits has simply amplified the allegations of the main petition, adding thereto nothing new on which a judgment for plaintiff could be based, we will dispose of the case on that exception.
"(10) That during the work of excavating under the said contract so amended the contractor encountered a peculiarly hard formation. * * *
"(11) That attention was not called, either in the advertisement or in the information furnished to the contractor, to the presence, or the probable presence, of such unusually hard subsoil formation along the route of the project advertised and contracted for. * * *
"(12) That neither the original reconnaissance nor the subsequent surveys revealed the presence of the hard bottom which was later encountered when the work of dredging was actually commenced; and that up tosuch time the presence of such unusually hard formationwas never known, foreseen, or suspected by any one,whether engineers, members of the defendant board,contractors or any one else whomsoever. (Italics ours.)
"(13) That such unusually hard subsurface formation had never been encountered in any drainage work in this section of the state, and no reason existed for suspecting its existence; that the reconnaissance and survey did not indicate, nor would anything done in the exercise of reasonable diligence or prudence have revealed, the presence of such formation."
"(19) That such unexpected, unforeseen, and unusual hard subsoil formation rendered it much more expensive to the contractor to carry out the work; and caused great and unusual outlays, not due to the fault of the contractor, in order to carry out the work; but that, despite all such additional cost, expense, delays, and unusual difficulties; the work * * * has now been finally completed to the satisfaction of the state engineer in charge. * * *
"(20) That the original contract and the extensions thereof were entered into upon the part of the contractor and defendant under and through a materialerror of fact as to the substance of the thing whichwas the object of the contract, such error being mutual on the part of the contractor and of said board; and the contractor would not have entered into said *1005 contract for the price therein set out but for such material error, resulting from the fact that all parties supposed that they were dealing with conditions and formations usually encountered in such drainage work; none of the parties being called upon to foreseeor to suspect the presence of the unusually hardsubsurface formation hereinabove referred to, and which rendered the work to be accomplished by the contractor of a totally different nature from thatwhich was intended. (Italics ours.)
"(21) That, upon first ascertaining the existence of said unusually hard formation, the contractor notified the board thereof and that he would claim additionalcompensation by reason thereof. (Italics ours.)
"(22) That at the request of the board the contractor continued with the execution of the workcalled for by the contract and its extensions, upon the promise and agreement and representation of the said board that all matters relating to the errorin question would be adjusted when the work should have been accomplished; and that throughout the performance of the original contract your petitioners have insistedupon their right to such additional compensation, and have proceeded with the execution of the work under the understanding with said board that all matters relating to such additional compensation would be adjusted upon final completion of the work. (Italics ours.)"
Wherefore the petitioners claim additional compensation, beyond the contract price, in a sum sufficient to make them whole for their total outlay, plus a reasonable profit.
Such is the petition which defendants contend, and which, we hold, shows no cause of action.
Incidentally, it will be observed that it is not charged that defendant made any misrepresentations or withheld any information which it had as to the character of the work to be done. On the contrary, it is alleged affirmatively that defendant had no more knowledge on that subject than had plaintiffs, and could no more have foreseen the difficulties to be encountered than could plaintiffs themselves.
This, of course, begs the question whether plaintiffs were bound to complete the contract without any right to claim extra compensation because of the unforeseen difficulties which they encountered. If they were not, then the promise made by defendant was not gratuitous, but based upon sufficient consideration. If they were, then the promise was purely gratuitous, and based upon no consideration whatever.
Again pretermitting the question whether or not even an individual can be bound by a purely gratuitous (executory) promise to give or to do something, the fact remains that public bodies cannot so bind themselves. For, without going in search of authorities generally so holding (whose name is legion), it suffices in this state to point to the constitutional inhibition on the subject:
"The Legislature shall have no power to grant, orauthorize any parish or municipal authority to grantany extra compensation, fee or allowance to a public officer, agent, servant, or contractor. *1007 * * *" Const. 1921, p. 13, art. 4, § 3; Const. 1898, art. 47; Const. 1879, art. 45.
And since the Legislature has no power to authorize the granting of extra (i.e., gratuitous) compensation to contractors, it follows that public boards (mere state agencies) must be without authority to make any such grant, even ex æquo et bono.
This inhibition is simply the complement of another constitutional limitation upon the power of public bodies to dispose of the funds and things of value belonging to the people; thus:
"The funds, credit, property or things of value of the state or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, association or corporation, public or private. * * *" Const. 1921, p. 16, art. 4, § 12; Const. 1898, art. 58; Const. 1879, art. 56.
And, although it does not behoove us to justify a constitutional provision (or law) by giving the reason thereof, yet it may not be amiss to point out the reason for these salutary provisions in the riotous legislation under the Constitution of 1868 which contained no such inhibitions.
But under our law there is a sanctity about contracts as great as elsewhere:
"Agreements legally entered into have the effect of laws on those who have formed them. * * * They must be performed with good faith." R.C.C. art. 1901.
Hence it follows that a party is obliged to perform a contract entered into by him if performance be possible at all, and regardless of any difficulty he might experience in performing it; thus: *1008
"The object of a contract must be possible. * * * The possibility must be determined, not by the means or ability of the party to fulfill his agreement, but by the nature of the thing which forms the object of it." R.C.C. art. 1891.
But such legislative dicta would be inane, if a party to a contract, upon finding that the thing which he has undertaken to do, though certainly possible, is yet difficult for him to perform, were thereupon permitted to escape his obligation upon the plea that he was in error "as to the substance of the thing which was the object of the contract."
The fact of the matter is that there is in such cases no error whatever as to the thing which was the object of the contract; the error on the part of the obligor then being not upon the matter of the contract, but as to his own ability to perform thecontract, or the difficulty he might have in performing it.
And the difficulty one may have in performing a contract is simply no excuse whatever for not performing it; thus:
"One who makes a contract never can be absolutely certain that he will be able to perform it when the time comes, and the very essence of it is that he takes the risk within the limits of his undertaking. The modern cases may have abated somewhat the absoluteness of the older ones in determining the scope of the undertaking by the literal meaning of the words alone (The Kronprinzessin Cecilie [North German Lloyd v. Guaranty Trust Co.],
244 U.S. 12 , 22, 37 S. Ct. 490, 61 L. Ed. 960, 965). But when the scope of the undertaking is fixed, that is merely another way of saying that the contractor takes the risk of the obstacles to that extent." Day v. United States,245 U.S. 159 , 38 S. Ct. 57, 62 L. Ed. 219, citing Carnegie Steel Co. v. United States,240 U.S. 146 , 36 S. Ct. 342, 60 L. Ed. 576; Globe Ref. Co. v. Landa Cotton Oil Co.,190 U.S. 540 , 47 L. Ed. 1171, 23 S. Ct. 754.
See, also, Lowber v. Bangs, 2 Wall, 729, 17 L. Ed. 768; The Harriman v. Emerick, 9 Wall. 161, 19 L. Ed. 629.
Hence, where a contractor undertook to build on plaintiff's lot of ground, and because of a latent defect in the soil the building *1009 cracked and threatened to fall, it was held that the contractor was liable to plaintiff for the cost of taking down the building, removing and renewing the foundations thereof, and rebuilding. Ingle v. Jones, 2 Wall. 1, 17 L. Ed. 762.
Hence also, where a contractor undertook to erect a schoolhouse, and it was blown down by a sudden storm, and when he had about finished erecting it a second time it fell again by reason of the soil (which before had been so hard as to be penetrated with difficulty with a pickax) becoming soft and miry because of the rising of unknown springs of water, it was held that the contractor and his sureties were liable for damages sustained by the school trustees because of his failure to erect the building. School Trustees v. Bennett, 27 N.J. Law, 513, 72 Am. Dec. 373.
See, also, Jacobs, Marcus Co. v. Credit Lyonnais, 12 Q.B.D. 589; Sheffield Waterworks Co. v. Carter, 8 Q.B.D. 632; Atkinson v. Ritchie, 10 East, 530; Paradine v. Jane, Aleyn 27 (82 Eng. Reprint, 897).
In this case the contract was possible of performance because plaintiff did perform it; and plaintiff was therefore obligated to perform it, and was entitled to no additional compensation for having done so, notwithstanding the difficulties encountered in carrying it out. These difficulties were "risks within the limits of his undertaking," and he took them to that extent as a necessary incident to his having entered into the contract at all.
Accordingly, the reconventional demand falls with the dismissal of the main demand on exception, for a defendant cannot insist that a suit be dismissed and at the same time retained for the purpose of trying a reconventional demand. McMillan v. Lorimer,
O'NIELL, C.J., dissents.