Mann v. Town of Rochester

• Decision Date: 29 April 1902
• Docket Number: 3,588
• Citation: 63 N.E. 874,29 Ind.App. 12
• Parties: MANN ET AL. v. TOWN OF ROCHESTER
• Court: Indiana Appellate Court

63 N.E. 874

29 Ind.App. 12

MANN ET AL. v. TOWN OF ROCHESTER

No. 3,588

Court of Appeals of Indiana

April 29, 1902

From Cass Circuit Court; D. H. Chase, Judge.

Action by James Mann and others against the town of Rochester for breach of contract for the construction of a system of water-works. From a judgment for defendant, plaintiffs appeal.

Affirmed.

I Conner, J. Rowley and C. W. Hendryx, for appellants.

D. C Justice and J. H. Bibler, for appellee.

OPINION

BLACK J.

The amended first and second paragraphs of the complaint of the appellants were each held insufficient on demurrer. In the first paragraph it was shown that the appellants were partners whose principal place of business was Dowagiac, Michigan, their business being that of putting in water-works plants for cities and towns, and especially putting in the pipes used for such work; and the appellee was a duly incorporated town; that in December, 1892, the board of trustees of the town, pursuant to a petition signed by more than 100 freeholders and resident taxpayers of the town, ordered an election with respect to a proposed system of water-works for the town, at which the electors had the option to vote for or against water-works; that notice of the election and the submission of such question thereat was published for three weeks successively, before the day of the election, in a newspaper named, printed and published in the town, and of general circulation therein, which notice was signed by the president of the board of trustees and by the town clerk; that the election was held conformably to law in December, 1892, and resulted in favor of water-works; that after the result of the election was known to the board of trustees, it procured plans and specifications for the proposed system of water-works, and caused the same to be filed by the clerk of the board, according to law, on the 30th of March, 1893; that the board immediately gave notice by publication in said newspaper, the notice being set out in the pleading, being a statement that sealed bids would be received by said board up to noon on April 25, 1893, and would be opened at eight p. m. the same day, for the construction of a complete system of water-works for the town; that there would be required seven and one-fourth miles of main, eighty hydrants, two pumps, two boilers, steel stand-pipe, brick pumping-station and chimney, inlet well, etc.; that bids would be received for the material and work separately, or for the work constructed complete; that each bid must be accompanied with a certified check or its equivalent; that the amount was named in the general specifications; that the plans might be seen and specifications procured at the office of the clerk of said board, or at the office of the engineer named, at Buffalo, New York; and that the right would be reserved to reject any and all bids,--the notice being signed by the president and the clerk of the board.

It was further alleged that the board, having so adopted plans and specifications, and having thus given notice, decided, on the 25th of April, 1893, to purchase the pipe for the system, and that it would let only the laying of the pipe, with the necessary work of putting it down and furnishing the lead and hemp therefor; that the appellants were informed by the board of its purpose to so let the work, and therefore submitted a bid, accompanied by a deposit check as provided for in said notice or letting, which bid was sealed and handed in to the board, as follows: "Proposal for pipe laying by Mann & Andrew, of Dowagiac, Mich. To the honorable, the president and board of trustees of the corporation of Rochester, Ind. We beg leave to submit the following proposal: We will furnish all lead, hemp, and all tools necessary, and lay your pipe in the best possible manner, for the following prices for cast iron pipe: For 4-in. pipe, 12c. per foot; for 6in. pipe, 14c. per foot; for 8in. pipe, 16c. per foot; for 10-in. pipe, 18c. per foot; for 12-in. pipe, 21c. per foot,--we setting all gates, gate-boxes, specials, and hydrants without extra cost to the corporation. Annexed find certified check for $ 250,"--signed by the appellants. It was alleged that this bid was in the aggregate sum of $ 5,200; that the board accepted the bid "and caused to be entered of record the following: 'Mann & Andrew, of Dowagiac, Mich., was awarded the contract for laying of pipe,' etc.; and in pursuance of said award, the said board directed its attorney, Virgil S. Reiter, by an entry of record as follows: 'The board then instructed said Reiter to prepare a contract for said work, and forward the same to Mann & Andrew, at Dowagiac, Michigan, which he did.'"

It was alleged that it was stipulated in said contract that the appellants would lay the pipes for the system of water-works as proposed in said town, to the extent of seven and one-fourth miles, furnishing all lead, hemp, and all tools necessary, and labor, and lay the pipe in the best possible manner, for the following prices: Cast iron pipe, etc setting out the prices as in the bid of the appellants, they setting all gates, gate-boxes, specials and hydrants, without extra cost to the corporation, for the aggregate sum of $ 5,200; that they would begin the work as soon as the weather would permit, and complete the same within six months, which cost of construction was to be paid when the work should be completed; that the appellants received the contract in due course of mail, and signed and accepted the same; that they also procured a bond conformably with the requirements and conditions of the letting of the work, which bond was executed by the American Surety Company of New York City; that after the signing of the contract by the appellants and the execution of the bond, the appellants sealed up the same in a large envelope, and addressed the same to the appellee, at Rochester, Indiana, and duly mailed the same to it; that the appellee received and accepted the same; "since which time, however, the said plaintiffs, nor either of them, have not seen said bond or contract, and they say the same, at the commencement of this cause of action, was either lost or destroyed, wholly without fault or negligence of said plaintiffs or either of them, and cannot now be found, for which reason no exact copy of either can be given, and they have to make oral proof thereof;" that immediately following the mailing of the contract they gathered together, at great expense, their necessary tools, engaged the necessary lead and hemp to lay the pipe, according to the plans and specifications and the terms and conditions of the contract, and employed laborers to perform the work; "and that they did then and there and do now stand ready and willing to perform all and singular the obligations incident to the completion of the work of laying the pipes for a system of water-works, and the performance of said contract...