Starkey v. City of Minneapolis

• Decision Date: 01 January 1874
• Citation: 19 Minn. 166
• Parties: JAMES STARKEY v. CITY OF MINNEAPOLIS.
• Court: Minnesota Supreme Court

Page 166

19 Minn. 166

JAMES STARKEY

v. CITY OF MINNEAPOLIS.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the court of common pleas, Ramsey county, sustaining a demurrer to the complaint.

Davis & O'Brien, for appellant, cited:

A. N. Merrick, for respondent, cited:

RIPLEY, C. J.

In this action the plaintiff seeks to recover because of the defendant's refusal to permit him to do certain work for the defendant. To enable him to do so, the defendant must have made an agreement with him, binding upon itself, that he should do said work, and the question is, whether or not the complaint states such an agreement.

Assuming the entire freedom and capacity of the defendant to contract in respect of the work, as if it had been a private person, that part of the complaint upon which the plaintiff manifestly relies seems to contain no such statement. The only consideration anywhere alleged for any promise by defendant, is a promise of the plaintiff. A promise is a good consideration for a promise, and it is so previous to performance and without performance. A mere promise to do an act at a future time is a sufficient consideration for an engagement to the party making such promise. But where the bare promise of the plaintiff is the only consideration for the promise, it must appear that the promises were made mutually and concurrently. There must be a reciprocity of obligation, so that if the fact of the promise of one party not being binding on him would leave the other party without a consideration for his promise, the engagement of that other party is not obligatory. Chit. Cont. 46.

A promise is not a good consideration for a promise unless there is an absolute mutuality of engagement, so that each party has the right at once to hold the other to a positive agreement. 1 Parsons, Cont. 459. Thus a contract to render services is not binding if there be no corresponding obligation to receive them. Chit. Cont. 472; Sykes v. Dison, 9 Adol. & E. 693.

In the case at bar, a promise by the plaintiff to do the work would not bind him, if there were no corresponding obligation on the part of the defendant to permit him to do it.

Accordingly the ordinary mode of declaring upon an executory contract for work and labor, for instance, where the plaintiff, as in this case, seeks to recover for not being allowed to do the work, is that the parties mutually agreed, the one to do the work and the other to employ him; that plaintiff offered and defendant refused to permit him to do it. 2 Chit. Pl. 424 et seq.

Instead of this, however, the plaintiff states certain acts of the parties, contending that they constitute a contract binding the defendant to employ him to do the work. The first of these is the advertisement inviting proposals for the work. The reservation of the right to reject any or all bids was entirely superfluous. Nothing in defendant's charter bound it to advertise for offers or to contract for the work with the lowest bidder. It was no more bound to accept an offer because it was the lowest than an individual would have been. People v. Croton Aqueduct Board, 9 Barb. 259.

When an owner being about to erect a building invites proposals or offers from masons, carpenters, etc., specifying the terms upon which they will perform the work, the owner is not bound (in the absence of an express pledge or agreement) to employ the party who offers to do the work at the lowest price. Topping v. Swords, 1 E. D. Smith, 609. He is no more bound to employ the lowest bidder than to build the house at all. The advertisement was but a question addressed to the plaintiff, as one of the public, whereby the defendant asked him to state the terms upon which he would do the work, when and as specified. But it did not bind the defendant to employ the plaintiff, if his should be the lowest bid, to construct the sewer, nor to construct the sewer at all.

The written proposal of the plaintiff was not responsive to the question. That referred to a sewer to be built on Third street according to the plans, etc., on or before September 30th, the contractor giving bonds, etc. The offer is to build "the sewers in Minneapolis according to the plans and specifications," at certain specified rates. Whether or not the plaintiff meant this for an offer to build a sewer on Third street by September 30th, etc., is not the question. He does not offer to do it.

So far, then, we have nothing but an offer by plaintiff to build the sewers in Minneapolis at certain specified rates. To make this obligatory upon the plaintiff, it must have been accepted by the defendant by a simple acceptance, without the introduction of any new terms.

The complaint alleges that upon consideration of the plaintiff's bid, with those of others, and it having been ascertained to be, as it was, the lowest and best offer, it "was duly awarded to this plaintiff by the defendant," i. e., the defendant duly awarded the plaintiff's offer to the plaintiff. This, literally taken, has no meaning at all. But the complaint, in subsequently referring to this action of the defendant, states, that "at the time when the contract was awarded as aforesaid, he was ready and willing to commence," etc. The complaint will therefore be considered as if it read that on or about April 20th the defendant awarded the contract to plaintiff.

To award, is to adjudge, to give or assign by sentence or judicial determination. "The contract" we can understand either of an agreement between two parties upon valid consideration to do or not to do a particular thing, or of a written instrument which embodies the agreement. The latter is not meant, but we are to understand that the defendant adjudged the agreement to do this work to the plaintiff, that is to say, it decided that it would agree with him to do it. Now, this is neither an acceptance of the plaintiff's offer to build the sewers in Minneapolis, nor a promise nor an offer made to him. It is a decision by the defendant that it will agree with plaintiff upon good consideration to do something which plaintiff has not yet offered to do, and defendant was as free the next moment to change that decision as it was to decide to build no sewer at all on Third street, or elsewhere. One might, it is true, use language incorrectly, and say that he "awarded a contract" to one, meaning that he accepted an offer as made. In such a case his meaning would be a question for the jury. In the construction of pleadings, however, words are to be understood in their plain and ordinary sense and so understood, if a pleading does not state a cause of action, the court must necessarily hold it insufficient.

In the present case, for instance, if it was meant by plaintiff, and so understood by defendant, that he offered to build the Third street sewer at those prices by September 30th, and giving bond therefor to defendant's satisfaction in $10,000, and that the defendant accepted his offer as meant, why not say so?

We must conclude on these pleadings that it was because the fact was otherwise. But the complaint proceeds to say, "to which award this plaintiff then and there duly assented and consented to the same." That is to say, the plaintiff "assented and consented" to the defendant's decision to agree with him for the performance of this work.

The question recurs: If there was a mutual agreement, the defendant to employ the plaintiff, and the plaintiff to do the work, why not say so? The last statement no more amounts to such an allegation than what preceded it. Such words per se import no obligation on the plaintiff's part to do the work. A mere assent does not suffice to constitute a contract.

A contract requires the assent of the parties to an agreement, and this agreement must be obligatory, and, as we have seen, the obligation must in general be mutual. This is some time briefly expressed by saying that there must be a request on one side and an assent on the other. 1 Parsons, Cont. 475.

So, it may be asked, where is there in the present case anything that amounts to an allegation of a request by the defendant to the plaintiff to do this work, and an assent to such request on his part? If the pleader uses language which does not allege an agreement, it must be understood that he does so because the parties did not make an agreement. The...