Dunn Const. Co. v. White

• Decision Date: 05 April 1923
• Docket Number: 6 Div. 746.
• Citation: 209 Ala. 460,96 So. 444
• Parties: DUNN CONST. CO. v. WHITE.
• Court: Alabama Supreme Court

96 So. 444

209 Ala. 460

DUNN CONST. CO. v. WHITE.

6 Div. 746.

Supreme Court of Alabama

April 5, 1923

Rehearing Denied May 10, 1923.

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill for injunction by William L. White against the Board of Revenue of Jefferson County and the Dunn Construction Company. From a decree for complainant, defendant Dunn Construction Company appeals. Affirmed.

Tillman Bradley & Baldwin and Dunn & Boyle, all of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

GARDNER J.

This is a suit by appellee, as a resident taxpayer of Jefferson county, against the board of revenue of said county and the Dunn Construction Company, seeking injunctive relief against the enforcement of a certain road contract entered into between the respondents. Upon submission of the cause for final decree upon pleadings and proof, the chancellor awarded the relief prayed for by complainant, and from this decree the respondent Dunn Construction Company has prosecuted this appeal.

A detailed outline of all the facts appearing in this record need not be stated, but brief reference will be made to those facts which we consider essential and of controlling importance upon this appeal.

Prior to April, 1920, an issue of road bonds of Jefferson county in the sum of $5,000,000 had been authorized by the voters. The law expressly provided that these bonds could not be sold below par, and litigation concerning this issue appears reported in the cases of Weakley v. Henry, 204 Ala 463, 86 So. 46, and Wallace v. Ball, 205 Ala. 623 88 So. 442. After due advertisement bids were submitted on March 22, 1920, for the purchase of $2,000,000 of these bonds. The Alabama Bond Company's bid being accepted, the bonds were awarded to it by resolution of the board of revenue on April 2, 1920.

Evidently anticipating the proceeds from the sale of these bonds, the board of revenue, on March 26, 1920, adopted a resolution authorizing the county engineer to advertise that bids would be received until noon of April 28, 1920, for the construction and rebuilding of 21 public roads, referred to as "projects"; the road known as the North Bessemer road, the construction of which is involved in this litigation, being designated as project No. 1-A. The Dunn Construction Company submitted bids for nine of these projects, and submitted a bidder's bond. While the minutes of the board of revenue do not contain a formally worded motion or resolution accepting the bid of the Dunn Construction Company, the records of said board do show that an "X" was placed after the amount of the Dunn Construction Company's bid, and an asterisk after its name and the amounts of its bid-all of which is shown to mean that the Dunn Construction Company was the lowest bidder, and that its bid had been accepted. According to this proof, therefore, the Dunn Company's bid shows project No. 1-A, which was for a paved road, was accepted, and also its bid for three other projects, which need not be described; this appears of May 3, 1920.

There was some delay in furnishing the form of contract to be executed, but it appears that in May, 1920, the Dunn Construction Company executed the contract furnished by the county engineer and delivered the bonds. Omitting a reference to the question of maintenance and the difference in the amount occasioned thereby, the amount of the bid we place at approximately $394,000. The contract was delivered to the president of the board for his signature, but he declined to sign for the reason it appeared the Alabama Bond Company had refused to take the bonds sold to it. It further appears that within some 60 or 90 days thereafter the bonds which had been delivered to the board by the Dunn Company were returned to the latter.

The evidence tends to show that after the Dunn Construction Company had been notified of the acceptance of its bid it made preparation for beginning the work, having contracted for some of the material, and let a subcontract to the Taylor Construction Company for clearing the ground; but further work was stopped by the county engineer upon information that the Alabama Bond Company had refused to take the bonds. The board of revenue made further efforts to find a purchaser for these bonds-the cases above referred to containing much of the history-but all these efforts were without avail.

On December 10, 1920, the board adopted a resolution to the effect that all outstanding contracts for road building, which had never been completed or signed, be annulled. Upon the Dunn Company learning of this, it protested and was told that this resolution was adopted at the suggestion of the state examiners for the reason that as the records appear these contracts would have to be charged up as a liability to the county.

The Dunn Construction Company offered proof to show that during the entire period of this delay it was ready, able, and willing to perform the contract, and anxious to do so. Under this contract the road was to have been completed by January 1, 1921. A number of other bids, made at the same time as the Dunn Company's bid, were also accepted; but work under them was never begun. The county was not in strong financial condition, and it very clearly appears that all parties at the time these bids were submitted and accepted well knew and understood that these projects were to be financed from the proceeds of the road bonds.

The evidence shows, without dispute, that after January, 1921, the cost of road construction began to decline, and that in the fall of that year the particular road project here involved could have been constructed at a cost of approximately 25 per cent. less than the bid price of April, 1920. The Dunn Company was persistent, and its representative frequently saw some member of the board in reference to carrying out this contract.

It is insisted by counsel for appellant that the minutes showed the bid of the Dunn Company as having been accepted, and therefore this was a completed contract, citing Sturdivant v. Mt. Dixie S. L. & I. Co., 197 Ala. 280, 72 So. 502; So. Ry. Co. v. Huntsville Lbr. Co., 191 Ala. 333, 67 So. 695. We consider it unnecessary to determine whether under the facts of this particular case the contract was considered by the parties as fully completed; but we are rather inclined to the view that it was expected that all parties would sign a formal contract. Bitulithic Pav. Co. v. Highland Park, 164 Mich. 223, 129 N.W. 46, Ann. Cas. 1912B, 719.

It appears, however, that subsequently, on September 27, 1921, the board of revenue recognized the binding force and effect of the contract with the Dunn Construction Company, and authorized its formal execution by the president of the board, repealing the resolution of December 10, 1920, and in consideration of which the Dunn Company agreed to release the county from all claims and demands arising from the failure of the county to theretofore perform the contract. This resolution further provided that the Dunn Company should begin work within 10 days after being notified in writing by the board that the board has on deposit sufficient cash proceeds from the sale of bonds issued for road construction work with which to pay estimates for said work, and the Dunn Company was to be allowed 20 months from the beginning of the work in which to complete the contract.

After the adoption of this resolution, one Webb, a citizen and taxpayer of Jefferson county, filed a bill in the circuit court of that county against the board of revenue and its members, seeking an injunction against the completion of any contract contemplated by said resolution. The Dunn Construction Company was not a party to that litigation, but the board of revenue filed a demurrer to the bill, and on October 10th a decree...