Con P. Curran Printing Co. v. City of St. Louis

• Decision Date: 16 June 1908
• Citation: 213 Mo. 22,111 S.W. 812
• Parties: CON P. CURRAN PRINTING CO. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

111 S.W. 812

213 Mo. 22

CON P. CURRAN PRINTING CO. v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

June 16, 1908.

1. MUNICIPAL CORPORATIONS — PRINTING — CONTRACTS—VALIDITY.

St. Louis City Charter, art. 15, § 2 (Ann. St. 1906, p. 4888), requires the mayor's annual message and accompanying reports to be printed in pamphlet form, the number of copies to be determined by the assembly. Section 1 (page 4888) requires all printing to be done by contract, subject to regulation by ordinance. St. Louis Gen. Ord. § 2041, provides that the register shall require a contractor to give a bond to perform his contracts, to be approved by the mayor. Section 2044 requires all printing to be done under the city register's supervision. The assembly ordered 1,000 copies of the mayor's message and accompanying documents, and the register received bids for the work after advertisement. Plaintiff being the lowest bidder was awarded the contract at $6,375. The forms of the contract and the bond were approved by the city counselor, and were signed by plaintiff; the bond being signed by a sufficient surety. The bond and contract were delivered to the register, and he executed the contract on the city's part, and the comptroller having countersigned it, as required by charter, art. 16, § 7 (Ann. St. 1906, p. 4890), returned it to the register. The mayor refused to approve the bond, because the contract price exceeded the appropriation therefor, and the comptroller canceled his counter signature on the contract. The comptroller's previous annual estimate, required by article 4, § 20 (Ann. St. 1906, p. 4826), of the amounts to be appropriated for municipal expenses, submitted an estimate for printing mayor's message and accompanying documents, etc., $5,000; advertising ordinances, etc., $28,000, and the assembly appropriated $33,000 for "printing stationery for mayor," etc. Plaintiff completed the work, and it was accepted by the register. Held, that the contract was fully executed, and in strict conformity with the charter, the comptroller's attempt to withdraw his signature being nugatory, and the mayor's refusal to approve the bond on the ground stated not affecting plaintiff's rights under the contract, since the contract price did not exceed the appropriation, there being an unexpended balance of $10,000 appropriated for printing and stationery.

2. SAME.

Plaintiff could sue the city for the contract price, his remedy not being restricted to a suit to compel the mayor by mandamus to approve the bond.

3. CONTRACTS—COVENANTS—CHARACTER.

Whether a covenant of a contract is dependent or independent must be determined by the intention of the parties.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by the Con P. Curran Printing Company against the city of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas. W. Bates and Benj. H. Charles, for appellant. Johnson, Houts, Marlatt & Hawes, for respondent.

GANTT, J.

This is an action to recover $6,375, the contract price for printing the "mayor's message and accompanying documents," pursuant to a contract between the Con P. Curran Printing Company and the city of St. Louis, made November 25, 1902, under the provisions of article 15 of the charter (Ann. St. 1906, pp. 4887, 4888) and chapter 26 of the General Ordinances of 1907 of the city of St. Louis. The register of the city of St. Louis has general supervision of and executes all contracts for the public printing of that city. Section 2 of article 15 of the charter provides: "The annual message of the mayor and reports of the comptroller, with the accompanying reports of the other city officers, shall be printed in pamphlet form, the number of copies to be determined by a majority of both houses of the municipal assembly by joint resolution." Section 1 of article 15 provides: "All job printing and binding shall be let by contract, subject to such regulations as may be prescribed by ordinance." Under authority of these provisions of the charter, the municipal assembly, by section 2038 of the General Ordinances, provided (referring to job printing) that: "When the cost of the work is estimated at two hundred dollars and over, proposals shall be invited by advertisement in the papers doing the city printing." Section 2041 of the Revised Ordinances provides: "The register shall require all contractors under this chapter to give good and sufficient bond for the faithful performance of said contract, to be approved by the mayor." Section 2044 provides: "All printing required by law, ordinance, the officers of the city or the municipal assembly, shall be done and made under the supervision of the city register."

On September 25, 1902, a resolution was passed by the council of the city of St. Louis, which was concurred in on October 6, 1902, by the House of Delegates, by which it was ordered that 1000 copies of the "mayor's message and accompanying documents" be printed in book and pamphlet form. At this time, Mr. Patrick R. Fitzgibbon was the city register, and Mr. James Y. Player was the city comptroller. Under the direction of this resolution, the register proceeded, on November 10th, to advertise, in due form, for bids for printing the documents referred to in the resolution. In this advertisement, the register reserved the right to reject any and all bids. The notice to bidders also provided that: "A bond of five thousand dollars, to be approved by the mayor, will be required of the successful bidder for the faithful performance of the contract." The bids for doing this work were opened on November 15th, at which time it was found that the Con P. Curran Printing Company was the lowest and best bidder, and the contract was awarded to it at the price named in its bid, to wit, $6,375. Thereafter a contract in writing for the doing of this printing, and a bond in the sum of $5,000, were drawn up, both of which were certified by the city counselor to be in due form, which contract and bond were on November 25th duly executed by the Con P. Curran Printing Company. The bond was signed by a surety of unquestioned responsibility. This contract, after being duly signed by the Con P. Curran Printing Company, was delivered to the register, whose duty it was to execute it on behalf of the city. The bond was also delivered to the register. The register did thereupon upon that day duly execute the contract on the part of the city, and then took the contract to the comptroller for the latter's counter signature, as required by section 7 of article 16 of the charter (Ann. St. 1906, p. 4890). The comptroller duly countersigned the contract, and returned it to the register, in whose custody all contracts are required, by section 7, art. 16, of the charter, to be kept. Later, on that day, the register, having possession of the contract and bond, proceeded with both to the office of the mayor to secure the approval of the sureties on the bond. While he was in the mayor's office, Mr. Player, the comptroller, came in and stated to the mayor that the contract price for doing this printing was in excess of the appropriation therefor. Upon the strength of this statement by the comptroller, the mayor refused to approve the bond, although it is agreed and admitted that the bond was in the amount and condition as required by law, and by the printed advertisement for bids and that the security was good and sufficient. The mayor's refusal to approve was not caused by any objection to the security or the sufficiency of the bond, but wholly upon the statement that the price named in the contract was in excess of the appropriation. The comptroller of the city in his annual estimate required by section 20 of article 4 of the charter (Ann. St. 1906, p. 4826) of the amounts to be appropriated for various items of municipal expenditures submitted to the municipal assembly among other things the following: "Printing the stationery for mayor, comptroller, auditor, register and treasurer, mayor's message and accompanying documents, $5,000.00. Advertising ordinances, etc., books, blanks, printing and stationery, etc., printing and reprinting ordinances, vehicle numbers and dog checks, $28,000.00. Total, $33,000.00." The municipal assembly passed the following ordinance No. 20,756, which was duly approved by the mayor July 2, 1902, entitled "An ordinance making appropriations to meet certain expenses of the city government for the fiscal year beginning April 8, 1902, and ending April 13, 1903, including bills unpaid at the beginning of the fiscal year and transferring certain amounts of temporary appropriations back to their respective revenues." In said ordinance it is provided, "There is hereby appropriated and set apart out of municipal revenue the amounts and for the purpose as hereinafter specified to cover expenditures of the current fiscal year including bills unpaid at the beginning of the fiscal year, namely: Printing and stationery for mayor, comptroller, auditor, register and treasurer, $33,000.00." Having caused the mayor to withhold his approval of the bond by the statement which he had made, to wit, that the price in the contract was in excess of the appropriation, Mr. Player proceeded to take a pen and draw a line through his counter signature on the contract. He did this with the intention of withdrawing his counter signature from the contract. But the printing company having started the printing of these documents proceeded to complete the work, and did complete and deliver all the printing called for in the contract. When completed the printed documents were approved and accepted by the register on behalf of the city, and the printing company then rendered its bill against the city for the contract price of $6,375, which bill was certified according to law by the register. Upon application being made to the city auditor for a warrant upon the treasurer for the payment of this bill, the auditor...