27 F. 495 | U.S. Circuit Court for the District of Indiana | 1883
Lead Opinion
The complaint charges an indebtedness of the defendant to the plaintiff in the sum of $24,000, for materials furnished, work and labor done, skill bestowed, and money paid out by the plaintiff, at the special instance of the defendant’s board of commissioners, in the construction of a court-house for the defendant. A proper bill of particulars is filed, and it is averred that the board of commissioners for the county has received, and is in the enjoyment of, the said work and labor and materials. The fourth paragraph of answer
By the first section of an act of the Indiana legislature, which took effect August 24, 1875, it is provided that “it shall not be lawful for any board of county commissioners in this state to make any contract for the construction of any court-house, jail, or any other county or township building or monument, until plans and specifications have been adopted by such board, and * * * deposited in the office of the auditor of such county, and open to the inspection of the people of such county. All contracts attempted to be made in violation of the foregoing provisions shall be null and void.” The next section provides that when such plans and specifications shall have been adopted and filed, the board shall not contract for or let the proposed work “until it has advertised such letting, and requested bids for the same,” in a manner prescribed, “with a reference to such plans and specifications: provided, that the provisions of this act shall not apply to buildings when the cost of the same shall not exceed-five hundred dollars.” The next section requires the board to let the contract to the lowest bidder, and to require of him bond and security for the faithful performance of the work according to the plans and specifications so deposited. Rev. St. 1881, §§ 4243-4245.
It is conceded, as I understand, that under these statutory provisions no special contract for the work done by the plaintiff, not made in substantial conformity with the statute, could be enforced; but the plaintiff insists that, upon the averment that the board of commissioners, acting for the county, had received and was in the enjoyment of the work done and materials furnished by him, he is entitled, upon the common count, to recover the quantum meruit. Neither upon authority, nor in reason, as it seems to me, can this be so. In the common count it is necessary to aver, and the plaintiff has averred, that the work was done at the special request of the defendant; that is to say, of its board of commissioners. This statute, however, expressly forbids- such request or assent on the part of the board. Of this the plaintiff was bound to take knowledge, and consequently is-placed in the attitude of one who has done a voluntary service, for which he can legally claim no recompense.
The common count or claim to recover a quantum meruit must rest upon an implied promise or liability; but where a municipal body is required to make certain contracts in a prescribed way, and forbidden to make them in any other way, there is left no room for an implied obligation. In this case the statute, in express terms, declares any attempt to make a contract, without the plans and speci
It follows that the demurrer to the answer should be overruled. So ordered.
(April 24, 1888.)
Rehearing
On Motion for Rehearing.
A rehearing upon the demurrer is asked; counsel for plaintiff now insisting, notwithstanding the requirements and inhibitions of the statute, that during construction of a court-house or other county building, under a contract made in accordance with the law, changes may he made in the plans and contracts for additional work entered into, though the cost thereof be greater than §500. I cannot concur with this view. Under such a construction, the law would apply only to contracts for the construction of an entire building, and could be evaded and practically nullified in most cases by making, without plans and specifications, and without advertisement, separate contracts for the different parts of the structure.
Rehearing denied.