The plaintiff alleged that the defendant caused its secretary to publish a notice inviting sealed proposals for building a house to be occupied by a high school; that plaintiff responded to this invitation, and gave defendant a proposal for the work; and that defendant opened the bids rеceived under the notice, and examined the same, and accepted plaintiff’s bid, and caused plaintiff to be notified thereof. It is further alleged that plaintiff fully performed the contract which they alleged was entered into by the acceptance of this proposal, but that defendаnt repudiated the contract, and prevented plaintiff from, performing it on his part. The allegations of the petition, except as to the рublication of notice and the employment of architects, were denied in the answer. By an amendment thereto the defendant alleges that рlaintiff and others submitted proposals for the work, and the directors of the defend-apt, believing that another bid lower than plaintiff’s was not made by a responsible person, at a meeting of the directors voted to accept plaintiff’s bid, which did not provide for the time for the completion of the building, nor the manner of making payments therefor, and it was understood by both that a written contract should be executed by the parties, and a bond, approved by the defendant’s directors, should be executed by plaintiff, as security for the performance of the contract, and that after the adjournment of the meeting when the vote for accepting plaintiff’s proposition was had, it was discovered by defendant’s directors that plaintiff was nоt the lowest bidder, but that another bid, lower than plaintiff’s, was made by a responsible bidder.
An instruction of the court in the following language plainly expresses the view of the district court as to the facts and the law of the case: ‘;You are instructed, as a matter of law, that the plaintiff and defendant did enter into a contract for the erection of said building, whereby said plaintiff was to receive fifty-three thousand, five hundred dollars, and that the defendant was guilty of a breach of said contract, and plaintiff is entitled to damages therefor. The only question for you to determine is the amount of damages he is entitled to recover. The burden of proof is upon the plaintiff to prove such sum by a preponderance of the testimony.” Upon these expressions of the view of the lаw and facts held by the court below, certain questions arise which are decisive of the case.
sec. 1723. The power of the directors is limited and circumscribed by the statute. They can enter into no contract unless authorized to do so, when the terms of the contract and the manner of binding the district, and the things to be done in order to bind it, as prеscribed by the statute, must be pursued. This position is based upon familiar legal principles. The statute confers upon the school directors the power to contract for the building of a school house with one who is the “lowest responsible bidder,” and who shall furnish “bonds with sufficient sureties for the faithful performаnce of the contract.” If plaintiff was not the lowest bidder, and did not furnish the bonds required, the.statute conferred no power upon the directors of the defendant to contract with plaintiff. Parr v. Village of Greenbush,
The motion to strike the amended answer, being in the nature of a demurrer, may be determined without considering the evidence upon the pleading alone. For the errors pointed out, the judgment of the district court is Reversed.