Mayor of Balto. v. Reynolds

Bowtb, C. J., delivered the opinion of this Court: The appellees sued the appellants, on a special contract •under seal, entitled, “Articles of Agreement, made and concluded this 11th of August, in the year of our Lord one thousand eight hundred, and fifty-six, between Joseph P. Shannon, City Commissioner, acting for and in behalf of the Mayor and City Council of Baltimore, of the first part, and Henry R. Reynolds and Josiah Reynolds, trading and doing business under the name and firm of H. R. and J. Reynolds, of the second part.” . The nar., after reciting the Resolution, the Articles of Agreement, etc., avers that, after the making and approval of said contract the said plaintiffs did actually enter upon the execution of said, contract, and the performance of the work therein mentioned, and thenceforth continued in the execution of said contract, and performance of said work, until the defendant caused to be stopped and did stop the work on said jail and prevented said plaintiffs from the further execution of the same, as thereinafter set forth and pleaded. The appellees aver, that when they entered on the execution of - said contraet, they were ready and prepared to build in accordance with the plan of Thos. and J. W. Dixon, architects of the City of Baltimore, as mentioned in said contract, and were ready and prepared (in case the said T. P. Shannon should deem it necessary, and determined to make any or all of the improvements specified in said Resolution) and should so direct, to huild said new jail comformahly to the directions in that behalf of said Shannon, and the said Shannon, deeming it necessary, did determine to make certain of the improvements, and did direct the appellees to build the said new jail in conformity to the directions of said Shannon, which directions were observed, obeyed and followed by them, and the appellants caused the said work to be stopped. The contract and its breaches as alleged, are put in issue by the first three pleas of the appellants; the other pleas ⁶ present issues, the consideration of which is not material in the disposition of the case.

In this state of the pleadings, it was incumbent on the appellees to establish, in limine, the validity of the contract. For which purpose, they submitted the first of their series of prayers, by which it is declared that the paper dated the 11th of August 1856, purporting to be a contract between said appellees and said Shannon as Oity Commissioner, was a valid and binding contract, which being granted, constitutes the appellants' first ground of exception. The appellants, being a public, municipal corporation or body politic, acting by a legally constituted officer, known as the City Commissioner, whose- powers in the premises were conferred by a special resolution, it is obvious that in deciding what was the contract, the Court must pass on all the questions involved in the construction of such contracts, made by public officers; and primarily, whether the paper declared to be a valid contract, was within the special authority conferred on theCommissioner. The authority of the agent, the description of the building to be erected, the plan and specifications, the manner in which the contract should be made, the duty of the Commissioner in superintending the work, and an injunction, to 11 cause the work to he done in strict conformity to the plan and specifications agreed upon,” are to be found in the Resolution of the appellants of the 8th of July 1856, viz: Resolved, hy the Mayor and City Council of Baltimore, that the City Commissioner be and he is hereby authorised and directed to advertise immediately, in two or more of the daily newspapers of the City of Baltimore, for such period of time as he may judge necessary, for proposals for building a new jail on the site or lot on which the old jail now stands; said new jail to be built according to the plan and specifications submitted by Thomas and J. W. Dixon, to the committee on police and jail of the City Council of 1855, and now on file in the office of the City Register, with such alterations as may be necessary to enlarge the ⁷ cells, improve the ventilation, provide accommodations in said jail or contiguous thereto for tbe uso of tho Warden, in the event of the City Commissioner deeming such alterations or improvements advisable; and tho said Commissioner is empowered and required with the consent of the Mayor, to contract in the manner and form contracts are usually made for the erection of buildings for tbe use of the City, with some one or more of the bidders for the building of said new jail; and it shall be the duty of said Commissioner to superintend the construction of tho building, or employ a competent person for the purpose, and cause the work to be done in strict conformity to the plans and specifications agreed upon.

The express conditions of this power are: 1st. Proposals for building according to tbe plan and specifications on file with the City Commissioner, with such alterations as may be necessary, in tbe event the City Commissioner should deem such alterations advisable. 2nd. A contract, in the form usally made for the erection of buildings, for the use of the City, with some one or more of the bidders. 3rd. Tbe construction of the work, in strict conformity to the plans and specifications agreed upon.

In other words, the plan, specifications and price, of building the new jail, including tho alterations, in the event of their being deemed necessary, were to be embodied in the contract, in the form usually made for the erection of buildings for the use of the City. The direction to advertise for proposals, implies that the work was to be clone upon a pre-arranged plan and at an ascertained, rate of compensation. Such is the manner and form in which contracts are usually made for the erection of buildings for the use of the City. Strict conformity with the plans and specifications agreed upon, could not otherwise bo enforced.

A power, to alter certain plans and specifications if deemed necessary, and contract for building Mri conformity te ⁸ plan and specifications agreed upon,” is very different from a power to contract with plan and specifications' to be allowed thereafter, if deemed necessary, “ad libitum.” The former, is a special limited power, Certain and safe, the execution of which fixes a legal liability; the" latter is indefinite!, unlimited, beyond supervision or control. The nature of the trust committed to the Commissioner, and the source from which he derived his authority, stamped upon it the restraints of a special power, if the language of the Resolution did not clearly impose them. Acting for a community, all whose expenses’ must be defrayed by appropriations derived from taxation and- rigidly accounted for; usage, public economy, fidelity of financial agents, as well as the specific appropriation of public' fufids, required express special contract, by plan and specification, previously agreed upon and approved, by which the sum total of the cost could be estimated and provided for. The Articles of Agreement recite that the appellees “have contracted with Joseph P. Shannon, City Commissioner, to erect a new jail within the enclosure in which the present jail is now located, for the sum of $102,750, said new jail to be built in compliance with a Resolution of the Mayor and City Council of Baltimore, approved July 8th, 1856', and agreeably to and in accordance with the plan and specifications submitted by Thomas and J. W. Dixon, architects of the City of Baltimore; said plan and specifications being selected by Virtue of the Resolution referred to and now on file, in connection with all other papers relating thereto, in the office of the City Commissioner.” Thus far, the Articles seem to be in strict compliance with the Resolution.

They aver that the Commissioner and the appellees have contracted for a fixed sum, and adopted the plan and specifications selected by the appellant’s Besolution'. If this were true, the authority of the Commissioner as to the form of the contract and plan of the building, was functus officio, exhausted. Nothing remained for him but to see the contract executed “in conformity to the plan and specifications agreed on.” ⁹ But, assuming liis power to alter or change the contract, at any time thereafter, was unlimited, the Articles proceed thus : “It is hereby further understood and agreed, that in. the event of J. P. Shannon, the party of the first part, deeming it advisable or necessary to make any or all the improvement specified in the Resolution referred to, IL E. and J. Reynolds, the party of fho second part, shall be paid additional for the samo. The character of the said alterations if made, and the amount to be paid lor the same shall be determined by J. P.‘Shannon the party of the first part.

And, in the event of the parties named being unable to agree as to what constitutes a just and fair and reasonable allowance for the additional work or improvements, should any be made, (or what amount shall bo deducted from the sum specified in this contract,) the difference, if any, shall be submitted to arbitration, the decision of the arbitrators to be final and conclusive.” Instead of a contract, for work to be done, according to plan and specification agreed on, hero is an agreement which authorises the parties to abandon the plan and specifications which they have just declared they had adopted, and execute the work according to future directions for a fair and reasonable allowance, to be ascertained by one of the parties thereto, or by arbitration. That is, the parties are to he remitted, to the remedies resorted to, where there is no express, but only an implied contract, a quantum meruit or quantum valébat. It is impossible to find in the Resolution, any warrant for these extraordinary clauses of the Articles. The appellants never designed to commit the credit of the City to the custody of the City Commissioner to bo pledged at bis discretion, in the erection of any alterations or improvements, without plan, specification-or price, previously ascertained and agreed on.

They did not delegate to him the power to determine the amount to ho paid for the work, except in the manner prescribed by the Resolution. Least of all have they authorised him, in case of ¹⁰ difference of opinion, to submit claims against them to an arbitrator, whose decision shall be final and conclusive. The common