State v. Noyes

• Decision Date: 17 April 1899
• Docket Number: 1,547.
• Citation: 56 P. 946,25 Nev. 31
• Parties: STATE ex rel. SCHAW et al. v. NOYES et al.
• Court: Nevada Supreme Court

56 P. 946

25 Nev. 31

STATE ex rel. SCHAW et al. v. NOYES et al.

No. 1,547.

Supreme Court of Nevada

April 17, 1899

Petition by the state, on the relation of William Schaw and others for writ of mandate to W. H. Noyes and others, constituting the city council of the city of Reno, to compel respondents to execute a certain contract. E. R. Dodge intervened. Dismissed.

R. M Clarke, for relators.

T. V Julien, A. E. Cheney, and T. Wren, for respondents. E. R. Dodge, intervener, pro se.

MASSEY J.

Original application for writ of mandate commanding the respondents to execute a certain contract for the construction of a system of waterworks, and to compel the president of said council and the clerk of said city to execute said contract, and to compel said city council to execute and deliver to the relators certain bonds of said city pursuant to said contract. The petition, among other matters, recites: That on the 13th day of September, 1897, the city council of the city of Reno called, by resolution, an election to be held in the city of Reno on the 7th day of October, 1897, for the purpose of submitting to the electors of said city a proposition to issue the bonds of said city, in the amount of $130.000, for the purpose of procuring water and the erection of waterworks for the city. That all necessary steps were taken for holding the election pursuant to said order, by the giving of due notice thereof, defining the polling places, which notice was published as required by law. That in accordance therewith the election was held at the time and in the manner required. That on the 11th day of April, 1898, a canvass of the votes cast at said election was made by the city council, from which it was found that a majority of the votes cast were in favor of said proposition. That on the 11th day of May, 1898 in pursuance of said election, and in conformity with law, the city council published a notice to the effect that bids would be received until June 13, 1898, for the purchase of bonds, and also written proposals, with plans and specifications, to construct a water system for the city of Reno, to be paid for with the bonds of said city, which bids or proposals should be sealed, and addressed to the proper officer. That in answer to said notice the relators on or about the 13th day of June, 1898, submitted to the city council written proposals, with plans and specifications, to construct a water system for the city, to be paid for with the bonds of the city, in conformity with the notice. That at a meeting of the city council held on the 2d day of July, 1898, the council passed a resolution accepting the bid of the relators to construct a water system for said city, subject to certain modifications, which resolution was in the words and figures following, to wit: "Resolved, that it is the sense and judgment of this city council that the bid of Messrs. Schaw, Ingram, Batcher & Co. to construct a water system for the city of Reno from bar B, on the Truckee river, composed of the material mentioned in said bid, and of converse patent lock joints, be accepted, and a contract entered into with the said bidder for such construction as soon as the city council is, in law, free and unrestrained so to do, subject to the following modifications: ***; that Messrs. Torreyson & Summerfield be, and they are hereby, directed, in connection with the committee of water, fire, and lights, to draft and submit to this council, at a special meeting to be held at 8 o'clock p. m. on Tuesday evening, July 5, 1898, a proposed contract embodying the terms of the foregoing resolution." That at a meeting of said council held on the 7th day of July, 1898, the said council adopted the following resolution, to wit: "Resolved, that the proposed contract with Schaw, Ingram, Batcher & Co. for the construction of a water system for the city of Reno, Nevada, *** submitted to, and read in the presence of, this city council, be, and the same are hereby, approved, and their execution is hereby agreed upon, to be performed as soon as the city council is, in law, free so to do." A copy of the approved contract was fully set out in the petition. By the terms of the agreement, in part, it is provided that the relators should be paid for their work in bonds of the city of Reno, bearing interest, as follows: $25,000, or the nearest approximate amount thereto, at the time of the execution of the agreement; $25,000 at the time of the delivery of all of the material for the water system at Reno, Nev.; the residue in installments of different amounts at subsequent dates. The relators, by the terms of the agreement, were required, at the time of its execution, to make and deliver to the city council a good and sufficient bond, in the sum of $50,000, conditioned for the faithful performance of the obligations imposed upon them by agreement. The other stipulations of the agreement are not material to the determination of the questions to be decided in this action, and are therefore omitted. There is also an averment that the relators at the time agreed to all the terms of the proposed contract, and are willing, and have ever since been willing, to enter into the same; that the relators thereafter demanded of the city council that it comply with, and act in accordance with, its proposals, and execute the contract and deliver to the relators the amount of bonds at the time and in the manner provided in said contract; that the said city council was at the time of the commencement of this action attempting to let to other persons the contract for the construction of said water system, in contravention of its acceptance of the bid of the relators; and that the said council was, at the time of the commencement of the action, in law, free and unrestrained to execute the contract. Upon the application, the alternative writ of mandamus issued out of the court, to which the respondents answered, in effect, that on the 25th day of June, 1898, the Reno Water, Land & Light Company, a corporation, commenced an action in the Second judicial district court of Nevada against the respondents, as the city council of the city of Reno, to restrain and enjoin such council from entering into the alleged and proposed contract with the relators, and from proceeding further therein; that, upon the final hearing and trial of said action, judgment was rendered by said court in favor of the said corporation on the 4th day of August, 1898, by which judgment and decree the respondents were forever restrained and enjoined from entering into the proposed alleged contract with relators, and from proceeding further in the matter; that said judgment, order, and injunction have never been revoked or modified, and are now in full force, and binding upon the respondents; that an appeal has been regularly taken from said judgment, and the same is now pending and undetermined in the supreme court. It is further shown by the return and answer that the respondents denied that the relators ever gave them notice of their acceptance of the terms of the proposed contract, or of their desire to enter into the same, or of their acquiescence in, or acceptance of, the modification thereof, except that on the 12th day of October, 1898, and long after the rendition of the judgment set up, the relators caused a notice and demand to be served upon respondents, a copy of which was attached to the return. It is further shown by the answer and return that the city council of the city of Reno, at a meeting held on the 2d day of November, 1898, adopted a resolution to the effect that no further action should be taken by the city council in respect to the matter of receiving bids or proposals for the construction of waterworks for said city until the supreme court of the state of Nevada had decided the matter relating thereto then pending in said court. It is further alleged that the city council have at no time intended, nor do they now intend, nor are they endeavoring, to contract with any person or persons for the construction of waterworks for said city, nor will they enter into any such contract, until the pending appeal aforesaid shall have been finally determined. The relators interposed a demurrer to the answer, but we do not deem it necessary to consider separately the questions presented by the same, but such questions, as far as may be necessary, will be incidentally determined in the discussion of the case upon its merits. Under the issues made by the pleadings, it was shown by the testimony of Mr. Schaw, one of the relators, that he was present at the meeting of the city council held on July 7, 1898, at which the contract, as prepared by Messrs. Torreyson & Summerfield, under the direction of the resolution of the city council adopted on the 2d day of July, 1898, and as set out in the petition herein, was read, and that he, as the senior member of the firm of Schaw, Ingram, Batcher & Co., the relators herein, in response to a direct question from the president of the city council, accepted the terms of the proposed contract. The action of the Reno Water, Land & Light Company against the city council to restrain it from entering into a contract for the construction of a system of waterworks...