Commissioners V8. Mitchell, 82 Penn. 343. 66 66 66 "capable of bearing its duty for a time, which in the end may 66 66 The summary of the decision in this important case states the view of the court as follows: "The word 'responsible' in "the 6th Section of the Act of May 23, 1874, has a broader mean"ing than is involved in the pecuniary ability to make a good con"tract by security for its faithful performance; and, where the "term is applied to contracts requiring for their execution not "only pecuniary ability, but also judgment and skill, the statute imposes not merely a ministerial duty upon the city authori"ties, but also duties and powers which are deliberative and dis"cretionary; and therefore, where these authorities have exer"cised a discretion, mandamus will not lie to compel them to "modify a decision, even though their action was erroneous, "in the absence of clear proof of fraud or bad faith." A very similar view of the law was taken by the Supreme Court of Nevada in a case of the same sort. An asylum for the insane was to be erected by the State, and the statute pro- The Supreme Court held that the statute was mandatory in requiring the Commissioners to take the lowest responsible bid, and they had no power or authority to accept any other; but, in ascertaining whether or not a bidder was responsible, they were required to deliberate and decide, and, in doing so, they exercised judicial, not ministerial functions; "and, in de"ciding upon the responsibility of bidders, it was their duty to "consider not only their pecuniary ability to perform the con"tract, but it was their right and duty to inquire and ascertain Hoole vs. Kinkead, 16 Nev. 217. A Bid Less than the Reasonable Cost. Hoole vs. Kinkead, 16 Nev. 217. Character of Bidder may be Considered. People vs. Dorsheimer, 55 How. P. R. 118. Ross vs. Board of Education, 42 O. S. 374. State vs. Betts, 4 C. C. 86 (Ohio). "which ones, in point of skill, ability and integrity, would be "most likely to do faithful, conscientious work, and fulfil the contract promptly, according to its letter and spirit." 66 Laymen will probably wonder at the penetration of a court which could discover all this depth of meaning in the seemingly simple language of the statute; but it will be found that courts in general show great respect for the decisions of honest and capable men, who may be vested with discretionary powers, and are likely to interpret statutes as favorably for them as they can. In this case the Nevada court held, summing up its decision, that "it was the right of the Commissioners to reject "the plaintiff's bid, and their duty to do so if, after examination, "it was not, in their best judgment, the lowest responsible bid. "The testimony showed that the Commissioners acted con"scientiously, and their decision could not be disturbed." Another example of the tendency of courts to allow the character of the bidder to be considered, as well as the pecuniary resources at his command, in determining his responsi bility, is to be found in a New York decision, in which it was held that, where the law required a contract to be awarded to the lowest bona fide responsible bidder, the officers in charge of the matter might reject the tender of a bidder who was himself pecuniarily irresponsible, although the bond which he offered was ample. On the other hand, a board of officials is not entitled to exercise its discretion capriciously. Where the statute provided that the lowest responsible bid should be accepted, but that the board might, at its discretion, reject all the bids, it was held that this did not authorize the acceptance of any but the lowest responsible bid; and where, under a similar statute, an award was made to the highest bidder, instead of the lowest, on the ground that his goods were the best in quality and most suitable in design, the award was held to be unauthorized. In cases of this sort, however, a board or committee is usually allowed some discretion as to the relative value of the articles offered by different bidders. It has been decided in Ohio that, in receiving bids for heating-apparatus, a board is at liberty to adopt a particular system before advertising for bids, but need not do so. If it advertises so as to put all systems in competition, it need not select the lowest bid, provided it selects the lowest bid for the particular system it decides to be the best; and its decision as to what system is best, if made in good faith, cannot be reviewed by the courts. In any case, persons who bid for public work must be careful to comply with all the conditions imposed upon bidders. It has been decided in New York that, where the statute required a contract to be given to the lowest bidder, a bid not made in conformity with the conditions was not to be considered, even though it was the lowest. Fraudulent bidding is, of course, to be avoided on moral grounds; but contractors do not always know that such bidding exposes them to temporal penalties, as well as to postmortem torment. In two cases in New York, where one of the bidders had purchased from the others the right to bid, and had induced them to destroy their tenders, so as to secure the contract for himself at a more remunerative price, it has been decided that all combinations, of this or any other kind, to obtain the award of contracts to any other than the lowest bidder, are fraudulent, and, on discovery, the State, or other party interested, may maintain an action for damages against a bidder who secures a contract by such means. It should be remembered, also, that the making of a bid for work does not put the one to whom the offer is made under any obligation, unless he has made some promise or agreement in relation to it. Where a man had talked about building, and had obtained some estimates, and, after he had given up the undertaking, the contractor who had submitted the lowest bid sued him for damages equal to the profit he would have made on the job, it was held that mere vague talk about building, without an agreement to give the work to the lowest bidder, did not give any claim for damages. State vs. Board of Edu cation, 20 Bull, 156. Bidders must Comply with Conditions. Weed, etc. vs. 56 N. Y. P. R. Fraudulent Bidding Dangerous. People vs. Lord. 6 Hun, 390. People vs. Stephens. 71 N. Y. 527. Bidders not Boyle vs. Desenberg, 74 Mich. 79. Entire and Divisible Contracts. CHAPTER XXII. THE INTERPRETATION OF CONTRACTS. N some of the discussions contained in the preceding chapters the distinction between an entire and a divisible con IN tract has been briefly mentioned. In the first, one party agrees to do a certain complete piece of work, for which the other agrees to pay a definite price, no part of which is due until the whole service is performed; while, in the other, the service to be rendered is divisible, either by agreement or by inference, into separate portions, on the completion of each of which a proportionate part of the price agreed to be paid is due. An illustration of an entire contract would be found in an agreement for making a suit of clothes, under which nothing would be due unless the clothes were completely finished; and the purchaser would not be required to receive or pay for a part of the suit, while a divisible contract might be illustrated by a bargain for building ten houses, at five thousand dollars apiece, under which it would generally be held that, if only six were built, the contractor would be entitled to be paid for these. As a point of abstract legal theory, apart from extraneous considerations, the courts usually hold that a building contract is an entire contract, and must be carried out in full to entitle the builder to any part of the contract price. tracted to build a house for a fixed sum. A man once conThe builder owed |
