Laramore & Douglass, Inc. v. City of Anderson, Ind.

• Decision Date: 18 May 1955
• Docket Number: No. 11352.,11352.
• Citation: 222 F.2d 480
• Parties: LARAMORE & DOUGLASS, Inc., Plaintiff-Appellant, v. CITY OF ANDERSON, IND., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

222 F.2d 480 (1955)

LARAMORE & DOUGLASS, Inc., Plaintiff-Appellant, v. CITY OF ANDERSON, IND., Defendant-Appellee.

No. 11352.

United States Court of Appeals Seventh Circuit.

May 18, 1955.

John H. Bishop, Chicago, Ill., Floyd W. Burns, Indianapolis, Ind., Ray W. Fick, Jr., Bishop, Burdett, Falasz & Doherty, Chicago, Ill., Cadick & Burns, Indianapolis, Ind., for appellant.

Harold J. Anderson, Anderson, Ind., Harry T. Ice, Donald F. Elliott, Jr., Indianapolis, Ind., Ross, McCord, Ice & Miller, Indianapolis, Ind., of counsel, for appellee.

Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Plaintiff appeals from a summary judgment entered by the district court in favor of defendant. Plaintiff is an Illinois corporation employed in the business of engineering. Defendant is an Indiana municipal corporation. It owns and operates its electric generating and distribution system.

Plaintiff sued to recover damages from defendant for breach of a contract for performance of engineering services by plaintiff for defendant in improving and enlarging its electric system or, in the alternative, to recover the reasonable value of the services rendered.

The motion for summary judgment was based upon plaintiff's complaint,¹ defendant's answer, an affidavit in support of the motion, and an affidavit in opposition thereto. The undisputed facts are now stated.

On May 19, 1948 plaintiff submitted to the board of public works of defendant a proposed contract, under the terms of which plaintiff agreed to make an engineering survey of the defendant's electric generating facilities; to submit a report and recommendations for improvement of the facilities and to design and construct such new facilities as were recommended by plaintiff and approved by defendant. Under the terms of the agreement, plaintiff was to be paid $3,000 for the survey and report and 2½% of the final cost of construction of the additional facilities plus 50% of certain overhead costs of plaintiff.

On May 21, 1948, the contract was accepted and signed by the members of the board of public works and by the mayor of defendant.

Plaintiff forthwith prepared the survey called for by the contract and submitted its recommendations for extension and enlargement of defendant's electric system. The report and recommendations of plaintiff were approved by the common council of defendant. Plaintiff was then paid $3,000.

On April 5, 1949, the common council of defendant enacted ordinance No. 1825 which provided for the issuance of $6,500,000 of revenue bonds for the purpose of constructing extensions to the municipal electric system of said city. Said ordinance provided inter alia as follows:

"* * * Whereas, heretofore, pursuant to the recommendation of the Board of Public Works and Safety of said City this Common Council has approved the reports for constructing extensions to said municipal electric system consisting of new and additional generating facilities with appurtenances and new and enlarged buildings housing the generating facilities of the system, and the construction of a high tension transmission loop with stepdown substations, all in accordance with and as contemplated by the Report dated September 29, 1948, by Laramore and Douglass, Inc., Engineers, now in file with the City Clerk; and * * *

"Whereas, such extensions are essential and necessary to the continued operation of the municipal electric system and will result in economy and efficiency in the system, and this Council therefore finds it essential, necessary, and advisable to construct the same; and * * *

"Now, Therefore, be it Ordained by the Common Council of the City of Anderson, Indiana, as follows: * * *."

On May 6, 1949 a supplemental agreement was signed by plaintiff and ratified by the board of public works on September 19, 1949 by resolution which characterized the supplemental agreement as a clarification of the original contract. By this document the method of paying plaintiff for its services was changed from a percentage of construction costs to a flat fee of $150,000.

After May 21, 1948 plaintiff entered upon the performance of the work agreed to be done by it under the terms of the agreement and continued under the agreement as supplemented by the clarification contract of May 6, 1949. It prepared the plans, drawings, specifications and other engineering data required for the improvements to defendant's electric system as contemplated by its report and recommendation. Plaintiff expended from its own funds in this work $27,771.45. Performance was continued and services were accepted by defendant until the early part of 1950 when plaintiff suspended work at defendant's request because of a taxpayer's suit that was filed to enjoin the issuance of the bonds called for by ordinance No. 1825.

The litigation involving the ordinance was culminated on June 23, 1952 by a decision of the Supreme Court of Indiana² dismissing the suit to enjoin issuance of the bonds. Plaintiff then notified defendant it was ready, able and willing to proceed with the work remaining to be done under the contract. Defendant notified plaintiff it would not proceed with the contract. On July 25, 1952 the common council of defendant enacted ordinance No. 2019 which rescinded the bond ordinance of April 5, 1949.

1. The sole issue on the first count is as to the validity of the contract. Plaintiff contends that the contract was validly executed initially and was approved and ratified by ordinance No. 1825. Defendant contends that the contract, insofar as it exceeded $2,000, was not approved or ratified by its common council and is therefore void and unenforceable. It further contends that in the absence of knowledge of the alleged contract, there could be no ratification of it by the council, and that in any event the contract, not having been entered into in compliance with the statute, and therefore being void, may not be ratified in any manner. It is agreed that an applicable statute³ provides:

"* * * the custody, management and control of all * * * electric light works * * * or power plants, owned or operated by any city of the * * * second * * * class, shall, except as otherwise expressly provided in this act, be wholly in the board of public works of such city * * *. That said board of public works in cities of the second class shall have power * * * to contract for any services or work, without any ratification or approval of the common council where the amount to be expended does not exceed the sum of two thousand dollars ($2,000), but where it exceeds said amount said contract must be approved or ratified by ordinance of the common council * * *."

This statute which vests in the defendant's board of public works the custody, management and control of its electric utility, also limits the contractual power of that board. The board of public works alone may enter into contracts on...