Turner v. Fremont

• Decision Date: 26 April 1909
• Docket Number: 2,835.
• Citation: 170 F. 259
• Parties: TURNER v. CITY OF FREMONT et al.
• Court: U.S. Court of Appeals — Eighth Circuit

170 F. 259

TURNER v. CITY OF FREMONT et al.

No. 2,835.

United States Court of Appeals, Eighth Circuit.

April 26, 1909

William H. Baily (Baily & Stipp, on the brief), for appellant.

C. E Abbott (F. Dolezal, on the brief), for appellees.

Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.

RINER District Judge.

This was a suit in equity, brought by the plaintiff to enjoin the city of Fremont, E. N. Morse, L. D. Richards, and John C Cleland, defendants herein, and each of them, from retaining in their possession two certified checks or collecting the money thereon and appropriating it to the use of the city of Fremont. The bill further prayed that the other defendant the Fremont National Bank, be enjoined from paying said certified checks or the money represented thereby to either of the defendants first named or any one claiming under them.

It was alleged in the bill that the defendant the city of Fremont is a municipal corporation organized under the laws of the state of Nebraska, and that the defendant E. N. Morse was the chairman of the board of public works; that the defendant L D. Richards was secretary of the board, and the defendant John C. Cleland was the treasurer of said city, respectively; that the defendant the Fremont National Bank was a national banking association having its place of business in the city of Fremont. In December, 1906, the city council of the city of Fremont created two paving districts in the city, known as 'District No. 10' and 'District No. 12,' and thereafter in March, 1907, the board of public works by notice duly published invited bids for the paving to be done in the two districts; the notice advising bidders that the work was to be done according to the plans and specifications therefor on file in the office of the city engineer. By the terms and conditions of the specifications the city reserved the right to reject any and all bids or parts of bids which seemed not to be advantageous to the city, and required each bidder to deposit with his proposal a certified check for an amount equal to 5 per cent. of the value of the work, as specified in his bid, 'which,' the specifications further provided, 'is hereby agreed shall be considered as liquidated damages, which shall be forfeited to the city of Fremont if such a proposal is accepted, the work awarded, and the bidder fails to enter into the contract in the form hereinafter prescribed with legally responsible sureties within 10 days after written notice so to do have been given the bidder by the board of public works.'

The quality and dimensions of the brick or brick blocks to be used were described, and the bidder was required to submit with his bid 10 samples of the kind of brick or brick blocks bid upon, duly labeled, showing the name of the bidder and the commercial name thereof. The specifications further provided that the brick and brick blocks should be of the kind known as 'repressed brick,' and, further, that the brick used should be subjected to the following tests:

'Specimen vitrified paving brick and vitrified brick blocks shall be placed in a machine known as a 'rattler,' twenty inches long, twenty-eight inches in diameter, making thirty revolutions a minute. Nine to twelve bricks shall constitute a charge for a single test. In addition 300 pounds of cast-iron foundry shot shall be placed in the rattler. These shot will be of two sizes, viz., one and one-half (1 1/2) inch cubes, and oblong pieces two and one-half (2 1/2) inches square section, and four and one-half (4 1/2) inches long. The number of revolutions for a standard test shall be eighteen hundred, and if the loss of weight by abrasion or impact during such test shall exceed 18 per cent. of the original weight of brick or brick blocks tested, then the brick or brick blocks shall be rejected. All pieces of one pound weight or less shall be counted as loss. An official test to be the average of two of the above tests. The city engineer may, at any time during the progress of the street work, take any number of the bricks or brick blocks for testing purposes, and, should they not meet the requirements, other satisfactory brick or brick blocks shall be substituted at once.'

April 5, 1907, pursuant to the notice inviting bids for this work and after examining the plans and specifications, plaintiff submitted separate bids for the two districts, numbered 10 and 12. In these bids he proposed to do the work, in compliance with the plans and specifications in the office of the city engineer, for certain prices set out in the bid, and, further, to enter into a contract within 10 days after notice that the contract had been awarded to him, if his proposal was accepted, and in the event of his failure to enter into such a contract within 10 days after receipt of the notice that the check inclosed with the notice 'shall be forfeited as prescribed in the specification. ' In the proposal for paving district No. 10, after his signature, he added the following:

'If awarded the contract, I propose to use 'Capital' brick or block, as per sample submitted.'

On the bid for paving district No. 12 there was written at the top of the bid:

'I propose to use 'Capital' brick or block, as per sample submitted.'

The check accompanying the bid for district No. 10 was for $2,100, and for district No. 12 $1,600, and both checks were indorsed on the back as follows: 'Pay to the order of city, and E. N. Morse, chairman of board of public works, Fremont, Neb., in event that work bid for is awarded undersigned and refusal is made to enter into legal contract as per specifications and bid dated April 5th, 1907.

J. W. Turner.'

The plaintiff's bids were accepted by the city, he was notified, and two contracts, one for each district, were forwarded to him to be executed. These contracts provided in each case that the work should be done according to the plans and specifications therefor. The plaintiff refused to sign the contracts, and submitted to the board of public works two other contracts, in which it was provided that the work should be done according to plans and specifications, except that the brick to be used were to be according to the samples submitted by him, and also that if the work should be delayed 'by strikes, bad weather, failure of others to promptly deliver materials, or from any other cause not due to the fault or neglect of the party of the second part, then the time for completing such improvements shall be extended for a period equivalent to such delay. ' He refused to sign the contracts requiring the brick to be submitted to the tests provided for in the specifications for the work, contending that the written provisions, 'If awarded the contract, I propose to use 'Capital' brick or block, as per sample submitted,' was a modification of the proposal that the work was to be done according to the plans and specifications. Upon the plaintiff's refusal to execute the contracts submitted by the city requiring the work to be done as provided in the plans and specifications, the city council declared the checks accompanying his bids forfeited, and the contract was then let to one Hugh Murphy, the next lowest bidder.

It is contended by the plaintiff that the contracts tendered by him conformed to his bids. Upon this question, Judge Munger, who heard this suit, said:

'That the advertisement for bids, plaintiff's bid, and the acceptance thereof by the proper city authorities constituted the agreement between them is unquestioned; the controversy being as to the interpretation thereof. It is fundamental that the primary object of construction in contract law is to discover the intention of the parties. To do this, the entire agreement is to be considered; not what separate parts may mean, but what the agreement means when considered as a whole, and, if possible, the agreement should be construed so as to give effect to each provision inserted therein. With these principles in view, it is not difficult to determine what was the agreement between the parties and as understood by them.

'The notice inviting bids provided, as we have seen, that the work was to be done according to certain plans and specifications. The specifications indicated the character of the material to be used, and the test to which the brick were to be subjected to determine whether or not they complied with the provisions of the contract, and it provided that these tests should be made by the city engineer at any time he desired during the progress of the work, and if the brick did not comply with the tests they were to be rejected and other brick substituted in their stead. The specifications also provided that each bidder should deposit with his bid 10 samples of the kind of brick upon which his bid was based, such samples to be labeled, showing the commercial name of the brick or brick blocks. This however, did not do away with the express provision that the brick should be from time to time, as the city engineer desired, subject to the tests provided by the specifications. The statement in the bid of plaintiff that he proposed to use 'Capital' brick, as per samples submitted, was merely a statement that the samples which he submitted were the samples asked for by the

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