Day v. City of Beatrice

• Decision Date: 04 March 1960
• Docket Number: No. 34710,34710
• Citation: 169 Neb. 858,101 N.W.2d 481
• Parties: Thomas M. DAY, Appellant-Cross-Appellee, v. CITY OF BEATRICE, a Municipal Corporation, and Lester Vicars, dba Beatrice Sanitation Company, Appellees-Cross-Appellants.
• Court: Nebraska Supreme Court

Page 481

101 N.W.2d 481

169 Neb. 858

Thomas M. DAY, Appellant-Cross-Appellee, v. CITY OF BEATRICE, a Municipal Corporation, and Lester Vicars, dba Beatrice Sanitation Company, Appellees-Cross-Appellants.

No. 34710.

Supreme Court of Nebraska.

March 4, 1960.

Syllabus by the Court

1. A litigant may not complain of the refusal of the court to enjoin acts of his adversary when the litigant has, with knowledge of the facts, participated and acquiesced in the performance of the acts he seeks to enjoin.

2. As a general rule a party may lose his right to injunctive relief through his own acquiescence in a breach of duty by the other party.

3. Where the power of a city to contract exists but was irregularly exercised, it may subsequently be adopted or ratified with the same resulting effect as though properly done in the first instance.

4. The authority of a city to enter into a contract may properly be questioned only by the parties to the contract or by a taxpayer of the city. A person in the status of an unsuccessful bidder for the contract cannot properly raise such issue.

5. Ordinarily a city council possesses a discretionary power in the awarding of contracts in considering the responsibility of bidders and in determining questions of public interest and welfare.

6. It will be presumed that a city council, in awarding a contract, acted in good faith, with honest motives, and for the purpose of promoting the public good and protecting the public interest.

7. Where there is no showing that a city council in the awarding of a contract acted arbitrarily, or from favoritism, ill will, fraud, collusion, or other such motives, a court will not ordinarily substitute its judgment for that of the council.

8. The failure to make an alternative bid at the letting of a public contract is not material where the alternative on which bids were asked played no part in the contract awarded.

9. In an equity suit a representative cause of action may not be properly joined with a personal cause of action.

10. An unsuccessful bidder for public work ordinarily acquires no legal right to protect, in law or equity, since the letting of contracts to the lowest responsible bidder is regarded as being for the benefit of the public and not for individual bidders.

11. Where a plaintiff joins a person as a party defendant against whom he has no cause of action, either in law or equity, such person is not a proper party defendant and an attack for misjoinder of parties defendant is valid.

12. The inclusion of causes of action in a petition which the plaintiff is without standing to maintain is subject to attack for misjoinder of causes of action.

Max Kier, Lincoln, for appellant.

Anne Carstens, Beatrice, Perry, Perry & Nuernberger, Lincoln, for appellees.

Heard before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

The plaintiff brought this suit as an unsuccessful bidder upon a public letting of a garbage disposal contract by the city of Beatrice to enjoin the performance of a contract entered into by the city and the defendant Vicars and to recover damages, and for a declaration of plaintiff's rights, status, and legal relationship with respect to said contract and the alleged extension of a former contract he had with the city. The trial court found for the defendants and dismissed the suit, subject to the right of plaintiff to proceed at law for damages for the violation of the alleged extension agreement. The plaintiff has appealed.

The evidence shows that the plaintiff and the city entered into a contract on September 16, 1952, by which plaintiff was to collect and dispose of garbage from October 1, 1952, to October 1, 1957, for a consideration stated in the contract. On August 31, 1957, the city council directed the city clerk to advertise for bids for the collection and disposal of garbage for a 5-year period commencing on October 1, 1957, the bids to be submitted not later than September 12, 1957, at 7 p. m. Bids were considered by the city council at the stated hour. A motion was made to accept the bid of Vicars on which four councilmen voted in the affirmative and four voted in the negative. The mayor then voted in the affirmative and declared the motion carried. The mayor and clerk were then authorized to execute a contract with Vicars on behalf of the city. On September 30, 1957, the city council by a majority vote purported to ratify and confirm the contract between the city and Vicars for 5 years commencing on October 1, 1957, and directed the mayor to sign the contract.

The evidence shows further that on August 26, 1957, the city council voted to extend plaintiff's 5-year contract which terminated on October 1, 1957, for a period of 60 days. On September 30, 1957, the city council withdrew and canceled the offer to extend the former contract for 60 days and a written notice to this effect was served at 7:25 a. m., on the following morning. The petition in this case was filed on September 21, 1957.

It is the contention of the plaintiff that he had a valid extension of his former contract from October 1, 1957, to December 1, 1957; that he was the low bidder at the letting of the new contract; and that the contract with Vicars was void in that it was not authorized by a majority vote of the council and that a valid appropriation of funds had not been made concerning the expenditures required by the contract.

With respect to the contention that plaintiff had a valid extension of the contract of September 16, 1952, the evidence is substantially as follows: At the council meeting held on August 26, 1957, the council voted to extend the contract of September 16, 1952, for a period of 60 days. On September 30, 1957, a motion withdrawing the offer to extend the contract for 60 days was adopted. No written agreement of extension was entered into. It is the contention of plaintiff that the mayor advised him of the extension and that he accepted it. The mayor denies offering the extension of the contract on behalf of the city, and that there was any acceptance of any such extension. The evidence on this point is in direct conflict. The trial court made no findings of fact on this issue and in effect left it for determination in the action for damages for violation of the alleged extension agreement which was reserved to the plaintiff by the trial court's decree. Defendants have cross-appealed and contend the evidence shows that plaintiff has no cause of action for damages for the breach of the extension agreement, and that their motions to dismiss should have been sustained at the close of all the evidence.

The evidence is in direct conflict as to whether or not there was an offer by the city and an acceptance of the offer of the 60-day extension agreement. But assuming that an offer and acceptance was established, his subsequent conduct was such as to defeat the remedy he now seeks. Plaintiff contends that he had a valid oral extension agreement for 60 days commencing on October 1, 1957. Subsequent thereto, in response to the advertisement for bids, plaintiff placed his bid with the city for the 5-year contract for the period from October 1, 1957, to October 1, 1962. This latter contract included within its terms the 60-day period of the claimed extension of the former contract, which he knew was to be an exclusive contract for the collection of garbage in the city for the stated period. At the consideration of the bids on September 12, 1957, plaintiff was present when the bids were opened and considered, and the contract awarded to Vicars. He admits in his testimony that he did not object or make it known that he was claiming a valid extension agreement for the first 60 days of the exclusive contract upon which he bid. He did not furnish insurance policies required until September 30, 1957, a date subsequent to the consideration of the bids and the letting of the contract to Vicars. His conduct indicates a complete acquiescence in the manner pursued by the city in awarding the contract for 5 years commencing with October 1, 1957, with full knowledge on his part. Under such circumstances no basis exists for the granting of equitable relief with respect to the asserted extension agreement. In Propst v. Board of Educational Lands & Funds, 156 Neb. 226, 55 N.W.2d 653, 658, an injunction suit involving a similar situation, this court said: 'He made no effort to have the court by order in this case delay or postpone the sale proceedings until the case could be heard and decided. On the contrary he, with full knowledge of all the facts, concurred and assisted in, and became the beneficiary of the sale of the lease on the land, the identical thing he was by this action asking the court to prevent. His conduct was inconsistent to a degree sufficient to defeat the granting by the court of the relief he asked.'

The general rule is that a party may lose his right to an injunction through his own acquiescence in a breach by the other party. Acquiescence may be shown in various ways, such as delay in making objection, or by consenting to the breach in question, whether the consent is express or implied from acts inconsistent with an intention to enforce the terms of the contract. 43 C.J.S., Injunctions, § 80, p. 554.

Plaintiff contends that the council did not authorize the contract with Vicars by the required vote. Without giving consideration to the question as to whether or not plaintiff could properly raise this question, we shall determine the merits of plaintiff's contention. The evidence shows the following: At the council meeting held on September 12, 1957, a...