Jackson County v. Galloway ( 1923 )

Cook, J.,

delivered the opinion of the court.

Galloway & Bonnabel, a co-partnership, instituted suit against Jackson county to recover one thousand dollars which had been declared forfeited to the county as liquidated damages for the failure of plaintiffs to comply with the terms of their bid and contract for the construction of a public road, and from a judgment for the amount sued for, this appeal was prosecuted.

On the 14th day of October, 1919, the board of supervisors of Jackson county, after due notice by advertisement, awarded to appellees a contract for the construction of a concrete road extending from the city of Pascagoula to the city of Moss Point, in said county, in accordance with plans and specifications therefor on file with the clerk of said board. Bidders were required to deposit with their bids for said contract the sum of one thousand dollars as evidence of good faith and as a guaranty that, if awarded the contract, the bidder would execute the contract and give bond as required within ten days after notice of award of the contract, and, in the event of the failure of the successful bidder to furnish the bond as required, this deposit of one thousand dollars was to be forfeited to appellant as liquidated damages, the stipulation in the proposal under which this deposit was made being as follows :

“I inclose a certified check for. one thousand (1,000) dollars and hereby agree that, in case of my failure to execute a contract and furnish bond within ten days after notice of award, the amount of this check will be forfeited to the county or district as liquidated damages arising out of my failure to execute a contract as proposed. It is understood that, in case I am not awarded the work, the check will be returned as provided in the specifications hereto attached.”

Appellees were present when the board awarded them the contract on the 14th day of October, 1919, and they executed the contract on that date, but failed to furnish the required bond of one hundred forty thousand dollars within ten days thereafter. At the next regular meeting-of the board of supervisors, and on November 3, 1919, the following order was adopted:

“Whereas, the board of supervisors of Jackson county, Miss., did on the 14th day of October, 1919, award a contract to Messrs. J. F. Galloway and H. J. Bonnabel for the construction of Mississippi state highway department (federal aid) project No. 77, as is fully shown by orders of file and record; and

“Whereas, the proposal of the said J. F. Galloway and H. J. Bonnabel provided that they would within ten days after notice of aAvard furnish bond as required by the plans and specifications of said project No. 77, and, in event of failure to file such bond within such time, that check accompanying such proposal in the sum of one thousand dollars be forfeited and award be made next lowest bidder or work readvertised; and

“Whereas it appears that more than ten days has expired since the awarding of said contract; that the said contract has been approved by J. W. Bullen, district engineer, and the state highway engineer, and notice given that work may begin on said project at once,'and no bond has yet been filed:

“It is therefore ordered by the board that the said J. F. Galloway and H. J. Bonnabel be, and they are hereby, directed to forthwith file their bond as such contractors in the'manner provided by law; otherwise award will be can-celled, and guaranty accompanying proposal forfeited.” '

A copy of this-order was mailed to appellees at Gulf-port, Miss., and on the 18th day of November, 1919, they tendered to the clerk of the board of supervisors a bond. The clerk refused to accept this bond, and at the December, 1919, meeting, the board likewise declined to receive the bond, but entered an order reciting in detail the prior procedings, the default of appellees, and declaring a forfeiture of the deposit of one thousand dollars, and also letting the contract to the next lowest bidder at a cost of about four thousand dollars in excess of the sum named in the contract with appellees.

Appellees’ declaration admitted that the bond was not filed within the time required, but averred as an excuse' for such failure that at the time the contract was awarded to them the plans and specifications for said roadwork had not been approved by the federal authorities, as required by the federal aid act of Congress. Appellant filed a motion to strike from the declaration all matter relating to the lack of approval of the plans and specifications by the federal authorities on the grounds, among others, that such matter was of no concern to appellees and could not affect their rights or remedies; that at the time said contract was awarded to, and accepted by, appellees, they knew that such approval had not been obtained; that such lack of approval was not the cause of the failure to file the bond; and that such allegation was at variance with the written stipulations and terms of appellee’s proposal or bid, and the contract for the road construction work. This motion was sustained, and the cause was thereupon submitted to the court without the intervention of a jury, and a judgment entered in favor of appellees for the recovery of the deposit.

The appellant assigps numerous grounds for a reversal, but the respective contentions of the parties will more clearly appear from a discussion of the points urged by appellees in support of the judgment.

Appellees first contend that, in vieAV of the fact that-work could not be begun on the road until the plans and specifications had been approved by the federal authorities, and since such approval had not been secured on October 24, 1919, when the time limit originally required for filing the bond expired, they Avere relieved of the requirement to file the bond within that time; and at least, under all the facts and circumstances, the deposit ought not to be forfeited because of their failure to tender a bond until November 18, 1919, because the county suffered no injury, and the work could not have been begun in any event until the governmental departments had approved the plans and specifications.

This contention did not prevail in the court below, and in this respect Ave think the ruling of the court below was correct. It clearly appears from appellees’ testimony that, Avhen the award Avas made and they , assumed the obligation to furnish the bond Avithin ten days thereafter, they were fully informed of the fact that the plans and specifications had not been finally approved by the federal authorities. It likewise very clearly appears, from their testimony that the lack of such approval had nothing to do with their failure to file the bond within 'the required time limit, but that their default was caused by their inability to secure sufficient sureties within the fixed limit of time. The obligation of appellees to furnish this bond within ten days after notice of the award was unconditional. There Avas no provision against any contingency, and, having assumed this obligation with full knowledge of all the facts, appellees were not relieved of the duty assumed by this contract by reason of the fact that the federal authorities had not then approved the plans and specifications of the work.

The contention upon which appellees principally rely, however, is that the order of the board of supervisors of November 3, 1919, was a waiver of the limit of ten days originally required for filing the bond, and that the re'quirement in this order that the bond be filed forthwith meant within a reasonable time from that date, and that under all the facts and circumstances of this, case the tender of the bond to the.clerk of the board on November 18, 1919, and to the board at the regular December meeting, was within a reasonable time from the entering of said order and within the meaning of the term “forthwith.”

The authorities generally hold that a contractual requirement that an act shall be performed forthwith is to be construed in reference to the nature of the act to be performed, and that it usually means within a reasonable length of time under all the facts and circumstances of the case, and, conceding for the sake of the argument that the order entered by the board of supervisors on November 3, .1919, was a waiver of the time limit originally fixed, or an extension of the time for filing the bond, the question then presented is whether the tender of November 18, 1919, was within a reasonable time under the facts and circumstances of this case. It will be noted that the board of supervisors and appellees originally contracted and agreed that ten days was a satisfactory and reasonable time within which to undertake and complete the furnishing of the bond. Prospective bidders were fully informed of all the requirements that would be exacted of the party securing the contract, among which was that of furnishing a bond in an amount equal to such bid within ten days after notice of the award of the contract. Appellees undertook and agreed to furnish the required bond within this time limit, and at the time the order of November 3d was entered eighteen full days had already elapsed, and, since both parties originally agreed that ten days was a reasonable time, we do not think more than ten days’ additional time can be said to be reasonable under these circumstances.

Appellees’ failure to furnish the bond within the original time limit, or within ten days after the order of November 3, 1919, was not due to any fault of appellant. As a result of this default appellant relet the contract at a loss of more than four thousand dollars, and we think it was within its rights in declaring a forfeiture of the sum deposited as liquidated damages.

It follows from the views herein expressed that the judgment of the court below will be reversed, and judgment entered here for appellant. Reversed, and judgment here for appellant.

Reversed.