Whalen v. Harrison

26 Mont. 316 | Mont. | 1902

Lead Opinion

MR. JUSTICE MILBURN

delivered the opinion of tbe court.

This case is prosecuted by the plaintiffs upon two causes of action, one being to recover $1,333.50 and interest, claimed to be due upon an alleged contract, set forth in tbe complaint.

It is 'alleged by tbe plaintiffs, in substance, that tbe defendant made a proposition to tbe board of school trustees of school district No. 1, at tbe city of Helena, to furnish and deliver all cut, carved, and rubble stone for tbe Helena High School Building for $22,598, which bid was rejected; that plaintiffs made a bid to1 tbe said board to erect tbe building and furnish all labor and materials for $63,100, and defendant offered to furnish to plaintiffs all sandstone for $19,000, and all rubble granite at $1.45 per perch, and on this basis plaintiffs made their bid; that this offer was rejected by tbe board because another bad offered to erect the building for $63,050, and tbe board asked plaintiffs to reduce their bid below $>63,050; that they could not do so without sustaining financial loss, unless they obtained tbe granite and sandstone for $19,000; that, to induce tbe plaintiffs to agree to construct the building and furnish tbe rest of tbe materials for $40,152, tbe defendant agreed to contract with tbe board to furnish all cut stone and rubble granite for $22,248, and, in consideration that plaintiffs would con-stimct tbe building and furnish all tbe rest of tbe materials for $40,152, and use tlie stone furnished by defendant, be would pay them the difference between $19,000 plus $350, and $22,248, which difference amounted to $2,898; that thereupon the defendant contracted with the school board to furnish’ said cut stone and nibble granite for $22,248, and that plaintiffs thereupon agreed to furnish all the rest of the material and construct the building for $40,152; that defendant furnished the stone, and received from the school board $22,248, and plaintiffs accepted the stone, and constmcted the building according to their contract; that defendant thereby became indebted to plaintiffs in the sum of $2,898, less a credit for 850 perches of granite, amounting to $1,232, leaving a balance due of $1,665.50; and that other credits were allowed, which reduced the amount claimed to $1,335.50. It is then alleged that the contract was reduced to writing, and is set forth in the complaint as follows:

“HeleNA, Montana, July 31st, 1890.

“Memo, of agreement and understanding pending execution of contract on the basis hereof:

Whalen & Grant’s bid H. S. S. $63,100 00

They agree to dis. 330 00

$62,750 00

William Harrison’s bid. $22,598 00

He agrees to dis. 350 QO

$22,248 00

Building to cost around. $63,100 00

Less $330.00x2 .' 700 00

$62,400 00

“William Harrison agreed to furnish W. & Gr. cut stone for $19,000.00, which they agreed to accept. Wm. Harrison will receive from school committee $22,248.00. This figure including an estimate on the rubble (granite). W. & Gr. are entitled from Wm. Harrison to the difference between $19,000 plus $350.00, above shown disc., and $22,248.00, which sum is $2,898.00; said Whalen & Grant having to furnish granite rubble for H. S. S., which Wm. Harrison agrees to deliver f. o. b. N. P. P. P. for $1.45 per perch of 2,240 pounds. The above is our understanding and agreement.

“War. Harrison,

“StepheN P. Whalen,

“James S. Grant/'

Their second cause of action is set forth, claiming a balance due for work and labor amounting to $188.95.

The defendant demurred to each cause of action for want of substance. The 'demurrer was overruled. The defendant thereupon answered denying each and every allegation in the complaint. It is. not necessary to state anything further contained in the answer.

There is no serious attack made upon the judgment, so far as the second cause of action is concerned, and we find no error as to it except as appears hereinafter.

A motion having been made for a continuance on account of the absence of the defendant, we find that the court did not err in denying it, as the defendant, in our opinion, did not show diligence.

A motion for a nonsuit was made after plaintiffs submitted their case, and the same was denied. Thereupon the defendant offered no testimony, and the court, on motion of plaintiffs, directed a verdict for the plaintiffs upon both causes of action. In thus directing a verdict the court erred. There was only one witness, — plaintiff Whalen, — and he was a largely interested party, who was cross-examined at length, and whose testimony was not clear, hut somewhat confusing. Under the circumstances of this particular case, we think that the court should not have taken up- the duty of the jury, but should have left it to them to- determine the weight to he given- to his evidence, and the amount, if any, which was due to the plaintiffs under proper instructions of the court.

The plaintiffs make the point that the bill of exceptions used on motion for new trial, not having been submitted within ten days after the judgment was rendered, therefore cannot be used on appeal from the judgment. No appeal was taken from the order wbicb was made denying tbe motion' for a new trial. Counsel inquires whether any statement used on motion for new trial can be used under Section 1736 of the Code of Civil Procedure, if the new trial proceedings be not prosecuted beyond the district court. This section is as follows: “On an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the case, upon which the appellant relies. Any statement used on motion for a new trial may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing a new trial.” Under the language of this section we cannot see any reason why the bill of exceptions in this case may not be used on appeal from the judgment. The record was made within the time fixed, and while the facts were fresh in the mind of the judge; and, the purpose of the section being to prevent multiplication of the records, and this object having been attained, we cannot see any reason why such bill of exceptions may not be used on appeal from the judgment for all purposes for which a bill of exceptions may be properly used on appeal from the judgment.

Having made the inquiry above referred to, counsel proceeds to argue that the bill of exceptions was not served in time; that is, within ten days after entry of judgment. But, as is well said by counsel for appellant, Section 1173 of the Code of Civil Procedure provides that, when a motion for a new trial is made upon a bill of exceptions, the party shall have the same time after service of the notice of intention' to move for a new trial to serve his bill of exceptions, as is provided after entry of judgment by Section 1155, and he shall have ten days after service of such notice to serve a statement of the case, and in either case the judge may extend the time not more than thirty days in addition to the statutory time. Judgment was entered June 9, 1897. Notice of intention to move for a new trial was served and filed June 16. On June 25 an order was made by the judge extending the time until July 26 to prepare and serve bill of exceptions and statement on motion for new trial. Such service was made on July 24. Section 1136, supra, certainly, by its plain language, permits sucli bill of exceptions so saved and used on motion for new trial to be “used on appeal from a final judgment equally ’as upon appeal from tbe order granting or refusing a new trial” for all purposes for which a bill of exceptions containing matter which a, bill of exceptions may properly present on appeal from the judgment alone may be used. The words “any statement,” as used in the section, include a bill of exceptions. We therefore do not consider this point of respondent well taken.

We are of the opinion that the court should have granted the motion for a nonsuit as to the first cause of action, as prayed by defendant’s counsel. The testimony of the plaintiff Whalen, after showing that plaintiffs’ bid for1 $63,100 and that of defendant for $22,598, with one of a stranger, were rejected by the board, discloses the fact that plaintiffs and defendant, after the rejection of their separate bids, made pursuant to advertisement of the board, got together for consultation, all the parties hereto having been interviewed by members of the board, who had said that the bids must be reduced or the plan of the building altered. Whalen testifies that: “It seemed that the school boárd had been talking to Harrison, too, and we spoke to him about it, — that they were going to readvertise for bids, and do something, if they could not get a lower bid, — and asked Harrison what he thought he could do about it; and we told him that we were going to talk with those other parties; and finally he just came right out, and [we] agreed that we would stand $350 if he would stand that, and let it go at that; and, if the school board would stand that, that it was agreeable to us if it was to him.” He also testifies that: “We lost the proposition on the first bid, but afterwards, through an agreement, we were awarded the contract on account of agreeing to make this reduction. They intended to readvertise for bids, but they did not do it.” Also that: “We had an arrangement with Mr. Harrison whereby he was to refund to us tbe difference between $19,000 and tlie amount tbat lie bad previously put in a bid for.” Whalen also states in evidence that: “Before we made a bid we had a little conversation with Harrison about furnishing cut stone for this building. We figured like this: If we could get a satisfactory bid, we would use it; if we couldn’t, we figured that- we could furnish the stone ourselves, and open a quarry; and we had a quarry picked out.”

From the foregoing it seems to be very apparent that both the plaintiffs and the defendant were desirous to prevent the board from doing their duty under the law, to-wit, to re-advertise for bids from all who desired to compete; the bids received under the first advertisement having been all rejected, as conclusively appears. Besides this, Whalen and Grant evidently did not wish to be compelled to put in a new bid including prices for stone, thereby competing with Harrison. The plan was to avoid competition, and to deprive the people of any opportunity to possibly secure the construction of the building for less than $62,400.

We think that such a plan as disclosed by the evidence of the plaintiff Whalen is against public policy. The cases in the reports of decisions are many upon this subject, and the weight of authority is in support of the propositions: (1) As between bidders, each bidder must be left free to act according to his own judgment; (2) it is not the results of the agreement, but the object and possible effect thereof, that determines its validity; and (3) any agreement which, in its objector nature, is calculated to diminish competition for the obtainment of a public contract to the detriment of the public, is void. The authorities are so numerous in support of these principles that we forbear to collate them here, but refer to the discussion of this subject in Greenhood on Public Policy, p-. 178 ei seq.j and the cases cited. Our attention has not been called to any opinion or reasoning which conflicts with the views herein expressed.

Respondents refer us to Briggs v. Tillotson, 8 Johns. 304. In tbis case competition was complete, and the contract complained of was made after full competition was established, certain persons competing for bounty for the manufacture of specimens of cloth; the court holding that, if the contract had been made before complete manufacture of the cloth which was to compete, the contract would have been void. This appears to be against respondents, and not in their favor.

They also cite Whalen v. Brennan, 34 Neb. 129, 51 N. W. 759. But in this case also the law is laid down as we have endeavored to show it to be; for while the court in that case does quote with approval words from another court, to-wit: “You are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because, if there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting, and that their contracts, where entered into freely and voluntarily, shall be held sacred, and shall be enforced in courts of justice,” — language which is broad enough, if good law, to make a contract to murder the president of our nation an enforceable agreement. Still the same court does, as we do, declare that “the rule, no doubt, is that any agreement entered into by parties for the purpose of preventing competition in the letting of public contracts is void; and a like rule obtains where the necessary tendency or effect of the contract would be to stifle competition.” This case, therefore, does not support the respondents’ contention under the pleadings and the evidence;

The third case brought to our attention by respondents as authority is the ease of Breslin v. Brown, 24 Ohio St. 565, 15 Am. Rep. 627. In the opinion in that case the court uses this language: “The public policy which, it is supposed, avoids this contract, is that which favors fair and honest competition at public sales, and forbids all contracts and combinations between bidders which stifle competition. We unhesitatingly admit the rule to be that any agreement entered into for the purpose of preventing competition at such sales is * void. * * * So, also, any contract tbe effect of wbieb, or even tbe neeessary tendency of wbieb, is to stifle competition. Sncb contracts are absolutely void as between tbe parties thereto, because tbey are fraudulent as against tbe seller.” Tbis language used in tbis case cited by respondents certainly does not support tbeir contention, but tbe contrary.

Tbe fourth supposed authority named by respondents is Greenhood on Public Policy, page 181. Tbis a reference in Greenhood to tbe case of Breslin v. Brown, supra, in which tbe court, although it laid down tbe law in tbe words we have quoted, decided tbe case, under tbe peculiar facts therein, in favor of the plaintiff, who sued on tbe alleged void contract; but on tbe next page of Mr. Greenhood’s work (page 182) we find that be disapproves of tbe said decision as made. Thus we find no authority cited by respondents supporting tbeir views that the contract under consideration is not void.

Tbe fact is that plaintiffs practically said to Harrison tbis: “We do not wish you again to put in your bid for tbe stone in opposition to us. If you do, we shall be forced to underbid you, if we can, as we have a quarry selected; and then you may not sell any stone at all. If you will put in a bid, and give us a bonus of so much, — that is, tbe difference between $19,000 and tbe face of your bid, $22,248, — we will not bid on tbe stone at all, and thus you and we will prevent any advertising being done, now that tbe first advertising has failed; and so we will get tbis work ourselves in a way not known to tbe law. You will get your money directly from tbe board, and we will prevent any bid being made by others for less than $62,400.” In reason and upon authority we believe such a contract to be void.

We therefore are of tbe opinion that tbe court erred in denying the motion for a nonsuit as to' tbe first cause of action, as the evidence shows tbe contract to be void for tbe reasons above stated.

Reversed and remanded for further proceedings in accordance with the views herein expressed.

Reversed and. rema/nded.

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Concurrence Opinion

Me. Ciiiee Justice Beantly:

I concur.

Me. Justice Pigott:

I concur specially. With the holding that the court below did not err in refusing a continuance, I agree. I also- agree that the statement and bill of exceptions used on motion for a new trial are properly before us and must be considered on appeal from the judgment. I concur also in the holding that the credibility of the witness Whalen and the weight of his testimony were for the jury, not the court, and that the court erred in directing a verdict for the plaintiffs. For this error the judgment must be reversed. But from the decision that the court below should have nonsuited the plaintiffs in respect of the first cause of action, I respectfully dissent.