Trustees of the Sanitary District v. Poe

⁵⁴² Briscoe, J., delivered the opinion of the court. The Sanitary District of Chicago is a municipal corporation, created hy an Act of the General Assembly of Illinois, for the purpose of removing obstructions in the DesPlaines and Illinois Rivers, and to care for the sewage of the Sanitary District, consisting of the City of Chicago-, and other municipalities within Cook County, Illinois, and a large part of that county. On the 26th of May, 1909, the appellant, the Trustees of the Sanitary District of Chicago, entered into- a contract with one Frank F. Healey for doing all the work, and furnishing all' the materials and labor necessary for the- excavation and construction of what is known as Section S'even of the North ■Shore Channel of the Sanitary District of Chicago, in the County of Cook, Illinois. The work consisted of the excavation of a channel between certain points stated in the contract, and the construction of certain bridges,- also designated in the contract.

The contract provided that the contractor should furnish a bond in the sum of thirty thousand dollars, for the work under the contract, with good and sufficient sureties-, conditioned for the faithful performance of all the terms and conditions of the- contract and on the 26th of May, 1909, a bond was executed hy the contractor, asi principal and the United Surety Company of Baltimore, as surety, in the penal sum of thirty -thousand dollars, as required by the contract. By the twenty-first general condition of the contract, it is provided in part -as follows: “It is further agreed by the said party of the second part that if the work to he done under this contract shall he abandoned, or if it shall he assigned hy him, or if the contract is. not finished on September 1, 1910, or if. he.loses control of the work from any cause, excepting acts of God and the public enemy, or if the rate of progress is not such as to assure its completion within the time specified, or if at any time the engineer shall be of the opinion and shall so certify in writ ⁵⁴³ ing to tlio said party of the first part that said work, or any part thereof, is unnecessarily and unreasonably delayed, or that the contractor is willfully and persistently violating any of the conditions or covenants of this contract, or is not fulfilling said contract in good faith, the said party of the first part shall have the power to notify the said contractor to discontinue all work, or any part thereof, as may be designated by the said party of the first part, and the said party of the first part shall thereupon have the power either to complete said work by contract or to employ such men and ieams and to obtain such machinery, implements and tools, and to purchase such materials as the said engineer may deem necessary to complete the work herein described, or any part thereof. And in so doing, said engineer may use such tools, implements and materials as may be found upon the line of said work. The cost of so doing such work by the said engineer shall be charged to the said contractor, and the expense so charged shall be deducted and paid by the said party of tlie first pari out of such moneys as may be due, or at any time thereafter become due to said contractor, under and by virtue of this contract, or any pari thereof, so far as the same shall suffice therefor; and the balance, if any, shall he paid by said contractor on demand.” Ou the 10th of day of February, 1910, the contract was forfeited by the delay of the contractor in the performance of the work, and the contractor and his surety were notified to discontinue'1 all work under the contract.

The unfinished work under the contract was ordered by the Trustees of the Sanitary District to be completed by the Chief Engineer, ae eording to the orders set out in the record and in part as follows : “Ordered, That Frank F. Healey be and ho is hereby notified to discontinue forthwith all work under a contract heretofore entered into between himself and The Sanitary District of Chicago, dated May 5, 1909, ⁵⁴⁴ and approved May 26, 1909, for the excavating of a channel on what is designated as section seven of the North Shore Channel, together with certain bridge work thereon; and be it further “Ordered, That the chief engineer of The Sanitary District of Chicago be and he is hereby authorized and directed to forthwith begin and complete all the now unfinished work on said contract, and that the said chief engineer and president of the board of trustees-of said district be further authorized to employ such men and teams, and obtain such machinery, implements and tools, and to purchase such material as the said engineer may deem necessary to complete all the work . remaining unfinished on said contract.” This contract was completed by the S’anitary District, but, at the additional cost of $29,802.77, in excess of the original contract price, and for this amount a claim- was filed against the Receivers of the United -Surety Company, the appellees on the record now before us, in the liquidation of the business of that company. A statement account of the claim was filed with the auditor, and is set out in the record as follows: “Statement account Prank P. Healey contract for the excavation of section 7 of the North Shore Channel, for the construction of the substructures of the Main Street and Howard Avenue bridges, for the eonstruction of struts for the Oakton Avenue bridge and for the erection of the superstructures for the Main Street, Oakton Avenue and Howard Avenue bridges, as per contract dated May 5, 1909 (pages 643-65 of proceedings). Contractor failed to finish the work covered by said contract and The Sanitary District of Chicago completed same: Amount expended by The' Sanitary District of Chicago to complete contract after forfeiture of same, as per detailed statement attached hereto............. $91,171.90' ⁵⁴⁵ Amount paid contractor in cash, as follows: Voucher Ho. 1 (Gen. file Ho. 36566)...................$3,576.74 Voucher Ho. 2 (Gen. file Ho. 36754)............'....... 1,168.51 Voucher Ho. 3 (Gen. file Ho. 37099)................... 1,450.19 -----6,195.44 Amount paid the C. & H. W. Ry. Co. for making fill at the O. & H. W. Ry.

Co.’s "bridge approaches and "Weber coach yard not made by contractor, said fill being one of his contract obligations (see vouchers issued to O. & H. W. Ry. Co., account said railway company’s new bridge, Mayfair Cutoff)......................'. . . 4,443.16 Total amount expended by Sanitary District, account Healey contract.........$101,810.50 Less amount the Sanitary District would have paid the contractor if he had performed all the work specified in contract, as follows: Excavation, 424,025 IC. Y. at 14c...................$59,363.52 Erection of bridge supcrstrucure at Main Street.... 2,000.00 Erection of bridge superstructure at Oakton Avenue. 2,000.00 Erection of bridge superstructure at Howard Avenue 2,000.00 Completed concrete cylinders, 5,121 C. E. at 70c......... 3,585.12 Portland cement concrete, 279.9 O. Y. at $8.00...... 2,239.20 Reinforcing bars, 23,983 lbs. at 3c.................... 719.49 ⁵⁴⁶ Timber culverts and flume, 8.7% of $1,154.00......... 100.40 - 72,007.73 Balance being excess claimed by Sanitary District............................. $29,802.77.” It appears that the auditor of the court disallowed this claim of The Sanitary District in his. report, and from an order of the Circuit Court of Baltimore City, overruling appellant’s exceptions to the disallowance of the claim, this appeal has been taken. The contention upon the part of the appellees is, first, that the appellant cannot recover, because the damages claimed were the result of its own ultra, vires act .in completing the contract by day labor, instead of reletting the work to another contractor; second, assuming that the appellant had the power to complete the work by day labor, that, under the facts of this case, it ought not to have exercised the power because of the duty it owed to appellee to mitigate the damages.

The powers and duties of the Trustees of the Sanitary District of Chicago, it will he seen, have been defined and approved by a number of decisions of the Supreme Court of Illinois. The corporation was organized and created for the purpose of. constructing a sewhge disposal system, and as stated by the Supreme Court of Illinois in Gentleman v. Sanitary District, 260 Ill. 320 , no other corporation has powers commensurate with it. It was organized because of this fact. The Act authorizing its organization was passed giving it power to* do what no other