Wickwire v. City of Elkhart

• Decision Date: 13 March 1896
• Citation: 144 Ind. 305,43 N.E. 216
• Court: Indiana Supreme Court
• Parties: WICKWIRE et al. v. CITY OF ELKHART et al.

144 Ind. 305

43 N.E. 216

WICKWIRE et al.

v.CITY OF ELKHART et al.

Supreme Court of Indiana.

March 13, 1896.

Appeal from circuit court, Elkhart county; J. M. Vanfleet, Judge.

Action by Williard F. Wickwire and others against the city of Elkhart and others to enjoin the performance of a contract for street paving. From a judgment on a demurrer to the complaint the plaintiffs appeal. Reversed.

Osborn & Zook and D. N. Weaver, for appellants. Perry L. Turner and Chamberlain & Turner, for appellees.

HACKNEY, C. J.

The appellants, who were property owners along the line of Jackson street, in the city of Elkhart, sued the appellees, the city of Elkhart, the members of the common council and the mayor of said city, and A. F. Nims, to enjoin the improvement of said street by said Nims, under a contract awarded by the common council to him for the grading and paving of said street. The circuit court sustained the demurrer of the appellees to the complaint of the appellants, and that ruling is the only assigned error. The improvement undertaken was by virtue of the Barrett law (Rev. St. 1894, § 4288 et seq.), and the proceedings progressed without question to the action of the common council upon the bids for the work. One requirement of the ordinance was that bidders should deposit a certified check for $100 as security for the compliance with their bids in contracting for the work. A form of bid was prepared by the city and supplied to bidders, and the specifications contained the requirement that: “All bids shall be made per square yard, setting out in full kinds of brick and other materials to be used; also the price per running foot of curbing; and no bid shall be entertained having within it any provisions whatsoever. But the price per square yard shall include all the necessary work and materials in making the pavement complete. All work specified to be completed by August 1, 1893.” The appellee Nims, one Mayer, and others were competing bidders. The two bidders named were lower in their bids than any other bidders, and the bid of Mayer was $887 less than that of Nims, while the bid of Nims varied from the form provided by the city in containing, in connection with the item of excavating, a charge of one cent per cubic yard for each 100 feet of hauling beyond 1,000 feet; that the work should be completed by December 1, 1893, instead of August 1, 1893; that he should have the use of the city's street roller without charge; and that the engineer should “make an estimate the first of each month for all work done the preceding month, and 90 per cent. of same to be paid at once, and the total amount on completion of the contract.” The council accepted the bid of Nims, “striking out conditions mentioned in his bid,” declared it to be the best bid, and directed the preparation of a contract with Nims. A contract was prepared, reported to and approved by the council, and the mayor was ordered to execute the same on the part of the city. Nims executed the contract, and gave bond to the approval of the council, but the mayor declined to execute the contract. The contract so prepared contained the following provisions, not contemplated by the form of bid so provided, and not mentioned in any other proceeding of the council: (1) Limiting the hauling of surplus dirt to one-half mile; (2) that the work should be completed on or about December 1, 1893, and, if employés should strike, the time for completion should be extended; (3) that estimates should be made each 30 days after the work should begin, and 90 per cent. of such estimates should be paid by the city to Nims within 10 days after making each estimate, “as an advancement upon said work,” for which Nims should pay the city at the rate of 6 per centum from the dates of payments to a period not to exceed 60 days after the completion of the work, and the city to advance the balance unpaid upon said work within said 60 days. The statute (Rev. St. 1894, § 4288) provides for the giving of the contract to “the best bidder after advertising for three weeks * * * to receive proposals therefor.” It provides further (section 4290) that the corporation “shall be liable to the contractor for the contract price of said improvement,” and the lot owners shall be liable to the city, upon a basis prescribed, and the property shall be liable to a lien for the amount. The liability of the city to the contractor, it is further provided by section 4292, may be discharged in part by estimates as the work progresses, and payments from the treasury upon such estimates, deducting a reasonable percentage thereof to secure the completion of the contract. In Elliott on Roads and Streets (page 371) the correct doctrine with relation to the special assessment of property for such improvements is stated with clearness and precision. It is said: “The right to levy local assessments is regarded as an extraordinary one, and it cannot be...