McBrien v. City of Grand Rapids

• Decision Date: 28 January 1885
• Citation: 22 N.W. 206,56 Mich. 95
• Court: Michigan Supreme Court
• Parties: MCBRIEN and another v. CITY OF GRAND RAPIDS.

22 N.W. 206

56 Mich. 95

MCBRIEN and another v. CITY OF GRAND RAPIDS.

Supreme Court of Michigan

January 28, 1885

Error to the superior court of Grand Rapids.

E.S Eggleston, for plaintiffs and appellants.

J.W Ransom, for defendant.

CHAMPLIN J.

On the seventh day of April, 1880, the plaintiffs, James McBrien and John S. Farr, entered into a contract with the city of Grand Rapids to construct the extension of the Winter-street sewer from its then terminus to the south line of North street, in the city of Grand Rapids. By the terms of the contract the plaintiffs were to furnish all of the material, and do all of the work, in accordance with the plans, specifications, and profile relating thereto, then on file in the office of the board of public works of said city, which plan specifications, and profile were declared to be a part of the contract, and a copy of the specifications was annexed to the contract. The plaintiffs were to commence work on the fifteenth of April, 1880, and complete the same to Fifth street before July 15, 1880, and complete the whole work before December 1, A.D.1880, for the sum of $25,547. The plaintiffs completed the work about the first of December A.D.1881. The defendant paid to the plaintiffs upon this contract the sum of $25,125, leaving of the $25,547 the sum of $422 unpaid.

The plaintiffs claimed that by the terms of the contract, if they encountered rock excavation which had to be blasted, they were to receive pay for it by the cubic yard at what it was reasonably worth. Plaintiffs, in the progress of the work, encountered rock excavation which had to be blasted, and took out of such rock, as found by the court, 235 1/2 cubic yards, which was found to be worth four and a half dollars per cubic yard, making the sum of $1,059.75. The plaintiffs brought suit upon this contract, claiming the unpaid balance of $422; for rock excavation, $4,000; for quicksand excavation, $4,500; for extra gravel, $400; for extra sheet-piling, $300; for interest on the above items, $500.

To this declaration the defendant pleaded the general issue, and gave notice that it would show--First, that plaintiffs undertook and agreed to do all of the work of constructing the said sewer, and furnish all of the material necessary therefor, do all of the work incident thereto, and furnish all of the material for such incidental work, for the gross sum named in the contract, viz., $25,547; second, that plaintiffs had been paid on said contract the sum of $25,125; third, that the plaintiffs were indebted to the defendant for tapping city water-mains, and for water furnished by defendant to plaintiffs in the construction of said work, in the sum of $439.49, which defendant would set off, etc.; fourth, that plaintiffs had failed to complete the contract within the time agreed upon, and did not complete the same until about the ninth day of January, A.D.1882, by means of which defendant sustained great damage by being deprived of great gains and profits which it would have received from the same, amounting to the sum of $1,000; that defendant was obliged to pay, lay out, and expend large sums of money in the employment of an inspector to oversee said work, amounting to the sum of $394.37; that by means thereof, and by virtue of the terms of said contract, the defendants forfeited $10 per day as stipulated damages, and agreed that said sum of $394.37 so paid, laid out, and expended by said defendant in the employment of said inspector, might be deducted by defendant from the contract price for the construction of said work.

Upon the issue so formed the cause was tried before Hon. ISAAC H. PARRISH, without a jury, on the twenty-sixth day of October, 1883, and judgment was rendered by said judge in favor of the said defendant and against the said plaintiffs. Upon the trial of the cause the plaintiffs abandoned all claim except for rock excavation that had to be blasted and the unpaid balance of $422. The judge made and filed findings, and found that plaintiffs did, in the prosecution of the work, encounter rock excavation which had to be blasted, and took out 235 1/2 cubic yards of such rock, and that it was worth four and one-half dollars per cubic yard to take it out, which would amount to $1,059.75. He also found that the board of public works took no action upon the forfeiture of $10 per day for the failure of plaintiffs to complete their contract within the time specified in the contract. He also found that the board took no action with reference to deducting superintendent's wages from the contract price. He also found that the stipulated damages of $10 per day for not completing the work at the time agreed amounted to the sum of $300, and the superintendent's wages amounted to the sum of $306.37. But he found, as a matter of law, that the $10 a day for delay in the completion of the contract, and the matter of inspector's wages, not having been acted upon by the board of public works, were not proper matters of account in this case. The court found, as a matter of law, that the claim of plaintiffs for rock excavation was included in the gross sum named in the contract of $25,547. The court also found, as a matter of fact, that defendant contracted to pay for the work the sum of $25,547, and had paid of this sum $25,125, which would leave an unpaid balance of $422. The court found, as a matter of set-off, that the value of the water used by the defendants from the city water-works in the construction of this sewer was the sum of $426.80. The court also found, as a matter of law, that the claim made by the defendant for the use of water by the plaintiffs was legitimate matter of deduction from any claim of the plaintiffs in this action; and thereupon found no cause of action.

This reduces the plaintiffs' objections to the findings of law to two propositions: First. Was the finding that the plaintiffs were not entitled, under the contract, to extra compensation for taking out rock that had to be blasted, erroneous? Second. Was the finding that the claim made by the defendant for the use of water in the construction by the plaintiffs of this work a legitimate matter for deduction from any claim of the plaintiffs in this action erroneous?

Section 7 of the act authorizing the appointment of a board of public works in and for the city of Grand Rapids, provides that "in constructing sewers said board shall advertise for sealed proposals to execute the work, and for materials, according to the plans and specifications adopted by said board, and may contract with the lowest responsible bidder: provided, said board shall require security for the performance of proposals tendered to said board, if the bid is accepted, and security for the performance of contract: and provided further, it shall be at the option of the board to reject any or all bids or proposals made, and, if all bids are rejected, shall thereupon readvertise for proposals to execute the work, and for materials, as often as may be necessary, unless some responsible party will take the contract at the lowest bid previously offered, which the board may accept, if, in their judgment, for the best interest of the city." In construing this section, with reference to contracting with the lowest responsible bidder, the word "may" must be construed as if it meant shall. What the board is required to do is for the benefit of the public; the object being to invite competition, and prevent favoritism and fraud in awarding contracts for public works. It was not the intention of the legislature to leave it discretionary with the board whether the contract should be made with the lowest responsible bidder. It is required in all cases to advertise for proposals to do the work, and for materials, according to the plans and specifications adopted by the board. The only discretion the board is permitted to exercise is in rejecting bids. This may be necessary to prevent combinations among bidders, or, where the proposals are excessive, to protect the interests of the city. But, if the bids are rejected, the board is required to readvertise for proposals, as often as may be necessary, unless some responsible party will take the contract at the lowest bid previously offered.

The statute, therefore, plainly requires the contract to be let to the lowest responsible bidder who shall give the required security, based upon bids made in pursuance of public advertisement. No other method of contracting by the board in behalf of the city is authorized. In preparing the plans and specifications for a public improvement, which the board of public works are authorized to make, it is the manifest duty of the board to give a detailed statement of the plan of the work, and of the kinds and quality of the materials required, for the purpose of affording to bidders data from which to estimate the cost of the work and materials, and inducing fair and honest competition. It may frequently happen, in the construction of sewers, that quicksand or rock may be encountered which would largely increase the cost of construction, the extent of which it may be impossible to ascertain in advance. In preparing specifications and contracts it may be proper to mention such contingencies, and to provide for payment for such extraordinary contingencies at what the extra work required is reasonably worth by the cubic yard. But such a course can never be necessary, where, by the exercise of reasonable diligence and suitable investigation by the city surveyor or other proper official, the condition of things affecting the cost of construction can be ascertained beforehand, and can be justified only because the true condition of things cannot be thus ascertained. Brady v. Mayor of New York, 20 N.Y. 317, 318.

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