Insley v. Shepard

• Decision Date: 28 July 1887
• Parties: INSLEY and others v. SHEPARD and others.
• Court: U.S. District Court — Northern District of Illinois

31 F. 869

INSLEY and others v. SHEPARD and others.

United States Circuit Court, N.D. Illinois.

July 28, 1887

E. F Bull, for plaintiffs.

Geo. B Foster, for defendants.

BLODGETT J.

On September 13, 1883, a contract was made between the plaintiffs and the town of Peoria, by the highway commissioners of said town, by which plaintiffs agreed to construct a bridge across the Illinois river at a point known as 'Partridge's Crossing,' or the 'Narrows,' according to certain plans and specifications referred to in, and made a part of, the contract, for which the town agreed to pay the plaintiffs the sum of $51,800, payable in monthly estimates as the work was performed and the material was delivered. Plaintiffs soon after entered upon the performance of the work, and had spent during the first month about $800, for which an estimate was asked, but defendant refused to pay, and in substance gave plaintiffs notice that the contract would not be performed by the defendants nor the town; and this suit is brought to recover damages sustained by plaintiffs by reason of the breach of this contract. A plea of the general issue was filed, with a stipulation that any facts constituting a defense in the case might be put in evidence under this plea.

The controlling facts, as they appear from the proof, are as follows:

The Illinois river forms the eastern boundary between the town of Peoria, in Peoria county, and the town of Fond du Lac, in Tazewell county, in this state; and in the spring of 1883 an effort was made by the commissioners of highways of Peoria to have the commissioners of highways of the two towns join in the building and maintenance of a free bridge across the river. The commissioners of Fond du Lac refused to bear any part of the expense of the proposed bridge, whereupon a petition was presented to the supervisor of the town of Peoria to call a special town meeting to vote upon the proposition whether that town would proceed to build and maintain such bridge at its own expense, pursuant to the provisions of the act of March 28, 1883, amending section 107 of the act in regard to 'Roads and Bridges,' approved May 28, 1879. On the filing of this petition, the supervisors directed the town clerk to give notice of a special town meeting to be held on the twenty-sixth of June, 1883, to vote for or against the proposition to buy or build a free bridge across the Illinois river, and to borrow money, not to exceed $70,000, to purchase or construct the same. The notice so ordered was duly published, and a special town meeting was held, and voted by a large majority in favor of buying or building such bridge, and to borrow not to exceed $70,000 for that purpose. The commissioners thereupon caused notice to be published soliciting bids for the construction of a bridge 'across the Illinois river, opposite Peoria. ' A large number of bids were submitted by various bridge-builders, among whom the plaintiffs; and the bid of the plaintiffs was accepted, at the price of $86,850.

The river, opposite Peoria, widens out into what is known as 'Peoria Lake;' but about a mile above the north line of the township the stream becomes very much narrower. The plans and specifications of the proposed bridge contemplated a draw-span 295 feet long, turning upon a draw-pier, and two fixed truss spans of 150 feet each, and about 3,450 feet of wooden trestle-work. At the time the plaintiffs' proposal was received and accepted, the location of the bridge had not been fixed, and, as the cost of the bridge depended upon the width of the river or lake at the point where it should be built, the written contract with plaintiffs was delayed until the location was finally fixed at what is known as 'Partridge's Crossing,' or the 'Narrows,' a point about a mile north of the north line of the town where the stream is quite narrow as compared with any point along the east boundary of the town. The west end of the bridge is in the town of Richwoods, and the bridge was only accessible to Peoria by about 2 1/2 miles or road within the territory of the town of Richwoods. On locating the bridge at this point, the written contract now in suit was made and signed. No new bids were solicited for the bridge at the 'Narrows,' and the reduction of the contract price from $86,850 to $51,800 seems to have been mainly secured by reducing the wooden trestle-work from over 3,400 feet to about 500 feet; the bid showing the price for each class of work-- that is to say, for the piers, draw-span, truss-spans, and wooden trestle-work. Before locating the bridge, or at the time of so locating it, the commissioners acquired the right of way for a public road to the river from the highway known as the 'Old Galena Road,' running from Peoria northward; and there was a road upon the east side of the river which furnished access to the bridge from the east.

The defenses interposed are: (1) That the petition for the special town meeting did not ask to have the question of borrowing money to buy or build the bridge submitted to such meeting; (2) that the bridge to be built under the contract was located outside of the boundaries of the town; (3) that the contract in question was let without advertising for bids, as required by the statute.

As to the first point, the only matter required to be contained in the petition asking the supervisor to call a special town meeting is a request for a vote on the proposition as to whether the town will proceed to build and maintain the proposed bridge at its own expense, when the other town has refused to join in...