Denton v. City of Atchison
| Citation | 34 Kan. 438,8 P. 750 |
| Parties | HENRY DENTON v. THE CITY OF ATCHISON |
| Decision Date | 04 December 1885 |
| Court | United States State Supreme Court of Kansas |
Error from Atchison District Court.
ACTION by Denton against The City, to recover $ 421.90 and interest claimed to be due upon a certain contract. Judgment for the defendant, at the November Term, 1884. The plaintiff brings the case here. The material facts are stated in the opinion.
Judgment affirmed.
Jackson & Royse, for plaintiff in error.
Wm. R Smith, city attorney, for defendant in error.
OPINION
Henry Denton brought this action against the city of Atchison to recover the sum of $ 421.90 and interest, claimed to be due him upon a contract for furnishing material and constructing sidewalks upon certain streets within the city. The defendant denied performance of the contract, and refused payment. A trial was had before the court, and judgment given in favor of the city for costs. The plaintiff is here complaining of that judgment, and asking a reversal.
The facts in the case, as disclosed by the record, are briefly these: On November 23, 1881, the city advertised for proposals to construct certain sidewalks, which were to be five feet four inches wide, and to be paid for in special assessment bonds issued for the construction of sidewalks. The advertisement also contained a clause that the "plans and specifications for the above work can be seen at the city engineer's office, under whose direction and to whose acceptance all work must be done." On November 28, 1881, in response to the advertisement, the plaintiff made a proposal to the city that he would build the sidewalks described in the advertisement "according to the plans and specifications on file in the office of the city engineer, and under his direction, and to his acceptance, at the following price, viz.: 46 1/2 cents per lineal foot payable in side-walk bonds." The mayor and council, being in session on November 28, 1881, duly accepted the proposal made by the plaintiff, and a notice of the acceptance was given to him. At the time the contract was made, there was on file in the office of the city engineer a plan for a sidewalk five feet four inches wide, and resting upon four stringers, like the walks described in the advertisement of the city, and in the proposal of the plaintiff. This plan showed the kinds, quality and dimensions of the lumber and materials to be used in the construction of the walks, and specified that the subsills supporting the ends of the stringers should be two by six inches in size, and the intermediate ones two by four inches in size, and all to be of oak material. It appears that this plan had not been prepared for these particular sidewalks, but was a general one for all sidewalks of that width, and which had been on file in the city engineer's office for several months. The plaintiff proceeded at once to furnish material and construct the walks, and soon after the completion of the work he requested the city engineer to examine and accept it. Upon examination the city engineer refused to accept the sidewalks, upon the ground that the subsills upon which the plaintiff had placed the walks were not of the dimensions and material required by the contract. In constructing the walks the plaintiff had used pine instead of oak for the subsills, and those at the ends of the sections were two by four inches in size instead of two by six inches, as described in the plans on file in the city engineer's office. The plaintiff claimed that under the contract he was not required to use oak lumber, and that there was no agreement regarding subsills. It does not appear that any formal contract was entered into between the parties. Soon after the plaintiff's proposal was accepted, it seems that a contract in brief form was prepared by some person and signed by the plaintiff, which did not state the kind or dimensions of the lumber to be used for subsills, but it does not appear that the same was ever signed by the mayor, and it was not produced at the trial. So far as the testimony shows, its provisions seem to have been substantially like those stated in the advertisement and proposal. No other contract or formality was required or necessary. The proposal of the plaintiff was clear and definite in its...
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... ... rule of equity which considers that done which ought to be ... considered as done. See Denton v. [35 Wyo. 276] ... Atchison, 34 Kan. 438, 441, 8 P. 750. Hence that ... rule does not ... ...
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