Abells v. City of Syracuse

Ward, J.: The complaint in this action, alleged that a firm, Abells & Strong, in June, 1893, entered into a contract with the defendant (the city — 503 — of Syracuse), whereby it was agreed that Abells & Strong should grade Boyden street in that city from line to line, from Pattison street to Teall avenue, according to specifications made, for which grading, labor and materials furnished by them the defendant agreed to pay thirty-three cents per cubic -yard for all excavations, and thirty-three cents per cubic yard for all embankments — such payment to be made as the work progressed, upon estimates to be made by the commissioner of public works of the city, which estimates were required to be made monthly after the commencement of the work, the said defendant being allowed to retain of the moneys payable on the contract the sum of ten per cent for a period of six months after completion. The complaint further alleged that the contractors entered upon the performance of the contract, and that during the progress of. the said work it became necessary to build a stone wall as a retaining wall to properly grade said street, and that, defendant, through its officers and agents, being duly authorized, directed the said Abells & Strong, and employed them, to furnish material, excavate and build said wall, which the said Abells & Strong did, and that the labor and materials so furnished and performed were reasonably worth the sum of $913.63, which sum the defendant promised to pay, etc., and which became due and payable before the action was commenced. The complaint alleged, also, that there was due the plaintiff, by reason of the premises, the sum of $1,604.99, with interest from July 6, 1894. The cause of action was assigned before the commencement of this action by the contractors to this plaintiff. The defendant’s answer put in issue the matter in controversy m the action. The firm of Abells & Strong, pursuant to a notice duly advertised, issued by the common council of the defendant, dated June 26, 1893, for proposals to grade Boyden street, from Pattison street to Teall avenue, on the 3d of July, 1893, filed with the city a bid to construct the work for the price stated in the complaint, and further provided “ for all extra work done by written order of the Commissioner of Public Works — its actual reasonable cost to the contractor, as determined by the Commissioner, plus fifteen per cent of said cost.” This bid was accepted by the city,' and the contract was entered into between the parties in writing for the work in July, — 504 — 1893, pursuant to bid. This contract provided, among other things, that the work should be carried on as directed by the commissioner of public works of the defendant, and further provided that the engineer of the city could make alterations in the line and grade, and the commissioner of public works in place, form, position, dimension or material of the work before or after the commencement of the construction. If such alteration diminished the quantity of work to be done no- claim should arise to the contractors for anticipated profits; but if the alteration increased the amount of work, .such increase, should be paid for according to the quantity actually done, and “ at the price established .for such work under the contract, or, in case there is no price established, it should be paid for at its actual reasonable cost, as determined by the Commissioner; ” and that all extra .work should be done by written .order of the conunis-' sioner. The contract also provided that when an embankment was made it should at the top be of the width of the street from line to line, and the sides should be sloping and formed of earth of such a slope as to properly support the embankment. The work proceeded under the direction of the engineer and with the knowledge of the commissioner of public works, who, being out of health, substantially relegated his duties in the premises to the engineer. These officers under the city charter were the proper officers to represent the city in this work. In the progress of the work a fill became necessary along the side of the street, 'varying from three to twelve and fifteen feet in height; so that, in attempting to perform" the contract) it was discovered that if the top of the embankment was of the width of the street, the toe of the embankment riiust necessarily extend over the premises of abutting owners sufficiently to support the embankment with the earth slope required by the contract. If the fill was fifteen feet deep, the toe of the bank would be thirty feet upon the adjoining owners’ property. The adjoining owners refused to permit any portion of the embankment upon their premises and forbade it. An emergency, therefore, suddenly arose which neither of the parties seemed to have contemplated when the contract was made, and to persist in the performance-of the contract would render all concerned liable as trespassers and the work would probably be stopped. . The only way out of the difficulty was, therefore, to construct a vertical wall. — 505 — commencing at the line of the street instead of the sloping embankment, which would involve an exji.enditure not contemplated by the parties when the contract was executed. The city engineer, with the knowledge and consent of the commissioner of public works, verbally directed the contractors to construct this wall, which was done at an expense of $913. There were 37 yards of excavation for the foundation, which, at 33 cents per cubic yard, amounted to $28.71, and there were laid 81 cords of stone wall, amounting to $884.92. Monthly estimates were made ón this contract, and the commissioner of public works certified in writing to the correctness of the claim for the construction of this wall, and also in another monthly estimate recognized in writing the propriety of this work. The common council accepted the estimate of October 23, 1893, made by the engineer, acting for and in the name of the commissioner, which embraced $550 for the stone work, and ordered it paid. This was done; but subsequently the common council ordered the commissioner of public works to make a final estimate or account, omitting the said extra work and making a statement that there was finally due the contractors on the contract but $792.36; and the common council also adopted a resolution that the stone wall was built without proper authority and the city was not liable. The city engineer was the only witness sworn. ' He testified that the work was necessary, in order to carry out the contract, to build this vertical wall, and that it was extra work. The trial court found that it was extra work, and that the city, with full knowledge of the situation, had ratified the act of the city engineer acting for the commissioner of public works in ordering the extra work, by paying for a part thereof, recognizing it as valid and accepting the work as performed; that the extra work was worth the amount claimed therefor by the plaintiff; that, during the progress of the work, it became necessary to build the wall as a retaining wall to properly support the earth drawn upon the street for the purpose of making the fill and in order to protect the property of adjoining owners; and that the defendant, through the city engineer arid the commissioner of public works, authorized and directed the contract 'ors to build the said wall. These findings are sustained by the evidence The work was not only necessary and proper, but it was performed — 506 — in good faith. Ho- fraud is claimed, but it is admitted that the contractors had properly performed the work and that it was worth the amount claimed by the plaintiff. The defendant has had the benefit of this work and the plaintiff should not be deprived of the judgment in this case in view of his strong equitable claim in the matter, except the. law absolutely requires it. The learned counsel for the defendant insists that this stone work was not legally authorized by the defendant, and cites the provisions' of the city charter (Laws of 1885, chap. 26, § 155),.which provides: “ Whenever the common council shall order any work to be done or materials or supplies to be. furnished under, the provisions of the foregoing sections of this title, the same shall be done by contract if it shall involve an expenditure exceeding seventy-five dol-. lars, and such contract shall be let to the lowest bidder,” etc. This is a part of title 9 of chapter 26, which is entitled “local assessments and improvements.” The 138th section provides that the city shall have jurisdiction to construct and repair sewers, pavements, gutters, sidewalks, and make other local improvements subject to the provisions of that act. The defendant’s counsel also contends that, as the extra work was not ordered by the commissioner in writing, there can be no recovery for this work. The last objection will be answered first. This provision of the contract could be and was waived by the commissioner and the defendant; and whether waived or not, the oral direction was ratified and adopted by the commissioner in wilting, which was equivalent to an original authority in writing. There is more difficulty with the first objection, and it is earnestly contended by the defendant that it had no power either to order this extra work without advertising for bids for it under the charter or to ratify it after the work had been done; and it appeals to the well-known principle- -that a municipal corporation finds the measure of its power in the statute creating it or imposing the power. This principle has been invoked in many cases -of local improvements in cases'where fraud was apparent and collusion manifest between.the corporation officers and the contractors, and when, under the guise of extra work, they have sought to avoid th¿ publicity of advertising for bids for work and material the courts have been careful to protect the people from such fraudulent contracts and contrivances, and — 507 — hold the municipality strictly to its statutory duties and obligations; but in other cases like the one at bar, where the corporation has received a substantial benefit and retained such benefit, and the work was necessary in carrying out the contract, either as extra work or to meet exigencies which were unforeseen when the contract was entered into, the courts have been more lenient in their construction of corporate powers upon principles of equity, for they have held that the corporation is estopped from asserting a want of power in itself or its officers when they have induced and engaged in the performance of the very acts which they seek to repudiate for the want of power to perform them. In Brady v. Mayor, etc., of New York (20 N. Y. 312), where, under the charter of New York city that required all work performed for the city which should cost more than $250 should be subjected to public competition, a contract for setting curbs and gutter stones and flagging a portion of a street omitted all reference to rock excavation in the street which would be about seven-eighths of the work, the court held that such a contract was void and the common council could not ratify it, but the court says at page 319 : “ It is not necessary to deny that one who has bona fide performed labor under a contract which is void from a failure to comply with the statutes may maintain an action against the city to recover a qua/ntum meruit where the work has been accepted by the city and has gone into use for public purposes.” That is the case at bar exactly, and that portion of the complaint covering this extra work is based upon a quantum meruit. The matter of The Petition of Merriam (84 N. Y. 596) was also a New York case where in the advertisement for proposals for constructing a sewer a price was fixed -for rock excavations, which constituted a large portion of the work. Held, that this was a violation of the charter requiring competitive bids, clearly so where the city assumes to fix the price in advance. In The Matter of Rosenbaum (119 N. Y. 24), where a contract was let after advertisement and upon competition for paving a street with a patent pavement, the work of laying bridges, stones or crosswalks was not included, but the work of laying those crosswalks was awarded without advertisement or competition in violation of the provisions of the charter of New York city upon the order of Wil — 508 — liam M. Tweed, then-the commissioner of public works. This last order was held to be void aúd properly so. It was a matter that could and should have been included in the original contract and submitted to competition. Smith v. The City of Newburgh (77 N. Y. 130) was a case where a lease was executed to the city that was void under its charter. In Moynahan v. Birkett (81 Hun, 395) was where the public authorities assumed to fix in advance the prices for extra work without knowing what such extra work would be in detail, and thus shutting off competition therefor. This case is subject to the same criticism as The Matter of Merriam (supra). The eases above cited are thóse relied upon by the defendant’s counsel to sustain its contention here. In view of the importance of the questions we have reviewed them at some length, and it is not perceived that they aid the defendant. The learned judge at Special Term, in directing this judgment, cites as an authority Weston v. City of Syracuse (82 Hun, 67). An examination of that-case and the authorities it cites will be uSefiil in sustaining the respondent’s contention here. Reference may also be profitably made to Smith v. The City of Utica (6 N. Y. Supp. 792); Nelson v. The Mayor, etc., of New York (63 N. Y. 535); Peterson v. The Mayor of New York (17 id. 449); Mulholland v. The Mayor, etc., of New York (113 id. 631); Fleming v. The Village of Suspension Bridge (92 id. 368); Moore v. The Mayor, etc., of New York (73 id. 238, 248). At the last page the court says: “When there has been a bona fide performance of a contract of which the city has had the benefit there is a strong- equity in favor of the contractor seeking his pay, entitling him to the benefit of a ratification, even of a- void contract, upon slight evidence, if the ratifying body has general power over the subject of the contract, and of an estoppel when an estoppel fairly results from the conduct of the general agents of the city.” (Citing with approval the remark quoted from Brady v. The Mayor, supra.) And Judge Martin, in Smith v. The City of Utica (supra) makes the same quotation from Moore v. The Mayor, and cites upon the question of estoppel several cases at page 194, to which reference may be. made. — 509 — While we obtain much benefit from the light of adjudged eases in solving vexed legal problems, we must go back primarily to the facts in each particular case to properly determine it. In the case at bar the city had general power under its charter over local improvement to streets, with a duty attending it. Officers were created with power to represent the city, and by direction of those very officers the plaintiff’s assignor made the improvements iii good faith, which we are considering. While it may not be necessary to invoke the doctrine of estoppel to .secure justice in this case, a strong case is presented where the defendant can be estopped from asserting its want of power. To be permitted to lie by, encourage plaintiff to make these expenditures, reap the fruits of those expenditures and then seek to avoid responsibility by asserting a want of power to do the very things that had been done and were necessary to be done, if successful, would work injustice; but we have reached the conclusion, with the trial court, that this was properly extra work and within the power of the superintendent and engineer to direct. The bid made by the contractors, the contract into which they entered with the city, indicated that extra work might occur and would be necessary. Indeed, we well know that hardly a work of this kind of any magnitude does occur but what, in the development of the work, it becomes apparent that there should be some variations from the original contract, which could not be provided against or anticipated when the contract was made, so as to be opened to competitive bidding. As to such matters the contract contains ample provisions, and the defendant imposed the power by its contract upon its superintendent of public, works and its engineer to make these changes, and ratified them when made. We concur with the trial court in its conclusions. The judgment should be affirmed, with costs. All concurred, except Follett and Green, JJ., dissenting.