Marion County v. Foxworth , 83 Miss. 677 ( 1903 )

Truly, J'.,

delivered the opinion of the court.

The board of supervisors of Marion county, at s. meeting regularly held in December, 1896, awarded to appellee a contract to construct a steel bridge across Pearl river- near Columbia, in that county, for the sum of 816,000, to be paid on the 1st of January, 1898. The order recites that the bid of Fox-worth to furnish and construct said bridge according to the plans and specifications on file was accepted by the board, and “the president hereof authorized to sign on behalf of this board any and all contracts (which contract for the building of such bridge was and is approved by this board in open session, and signed by the president for the board by its direction).” The said order further provided that the president of the board was “specially authorized to release said contractor or his assigns from the time limit in said contract for the completion of said bridge as be may deem fit and proper, and all according to tbe term's of said contract read to, and thereby fully approved by, said board.” The contract referred to in the order contained this provision: “It is further agreed that in case any change, modification or addition shall be made in the plans and specifications of said bridge or any change in the location thereof shall be made, then and in that event, additional time for completion and additional compensation shall be agreed to in writing between the parties hereto. Nor shall the contractor be held responsible for unavoidable delays caused by the United States authorities failing to approve the location of the bridge, or in the transportation, or by the elements, mobs or enemies of the government, strikes of working men in the employ of the contractor or his assigns, or of manufactories under contract with him for the furnishing of materials, for such acts of providence, or delays over which they have no control.” Subsequently, and before work was actually commenced upon the structure, the contractor notified the board, on June 8, 1897, that certain extra work was necessary for the stability and protection of the proposed bridge, and that this extra work consisted of certain piles to be driven in the center and end cylinders at a location shown by plans which accompanied the communication, wdiich entailed the use of additional lumber, concrete, spikes, etc. Further, a fender for the protection of the center pier, to extend from the -center cylinder up stream far enough to completely protect the upstream end of the bridge when swung open, and a cluster of piles to be built below the bridge for the protection of the downstream end of the bridge when swung open; and the end cylinders of the bridge were to be increased in size as shown by the plans. This proposal stated definitely the price which was to be charged for the material to be used in each particular portion of the proposed extra work. This proposal was, by order of the board, filed with the bridge plans, and the following order was pláeed on the minutes of the board: “It is ordered by the board that the plans proposed by the bridge contractor to pile center and west pier of bridge across Pearl river be adopted by the board. Also erection of fenders above bridge, and rest piles below the bridge, all of which is shown in drawing and specifications presented and ordered filed with the old plans and specifications of the bridge.” The plan and location of the bridge were not approved by the United States authorities until July 1, 1897. Subsequently, at its September meeting, the board, by order, extended the time for the completion of the bridge until the 1st day of December, 1897. The bridge was not completed until 111 days thereafter. After the bridge was completed and accepted by the board the contractor filed his account before the board for $19,215.40; $16,000 being the contract price for the bridge and $3,215.40 being the extra work, including the fenders both above and below the bridge. The boai’d refused to pay any of the account for extra work, and deducted $10 per day for the 111 days’ delay in the completion of the bridge after the 1st day of December, 1897. Thereupon the appellee filed his bill of complaint in the chancery court, setting up these facts, and averring that the delay was caused by the contingencies mentioned and provided against in his contract, and that therefore the board had no right to penalize him by reserving this. $1,110; further, that the bill for extra work was in accordance with the proposal for the same which had been adopted by the board, and that all of such extra work was absolutely necessary for the proper construction of the bridge, -and to insure its safety and stability after it was erected. The board of supervisors, in their answer, admitted the awarding of the contract, but contended that the delay in the completion of the bridge was not caused by any of the contingencies mentioned in the contract, and, as to • the extra work, averred .that the same was not necessary for the proper construction of the bridge, or for its stability and protection, and further, that the county was not bound to pay for said extra work, because there was no contract agreement to pay therefor duly and legally made; that the order adopting the plans for the extra work was not an acceptance thereof, nor did it constitute a contract to pay for the same; that this extra work was in fact the nature of another piece of work; and that the board could not have contracted for such work without first advertising for sealed bids ag' required by law. It was admitted that no advertisement was made in reference to the extra work. On final hearing the chancellor decreed that the appellee was entitled to recover the $1,110 withheld by the county as a penalty for failure to complete the bridge at the date contracted for, and that he was entitled to recover the full amount charged for the .extra work. From that decree the county prosecutes this appeal.

The question here presented is what power the board of supervisors of a county has in reference to additional or extra work thought necessary for the completion of any public work already contracted for. This subject has been treated of by this court on several occasions heretofore, and we see no reason for changing the rule announced in previous adjudications, so far as applicable to the state of the ease here made. In every public work of any considerable magnitude it must often, if not invariably, happen during the progress of the building that some deviations from the plans and specifications as originally adopted will be found necessary: some difference in the nature and character of the foundation, some change of location deemed advisable, will inevitably demand modifications, to a greater or lesser extent, in the original plan. This is peculiarly the case in constructing bridges over streams. A trivial mistake in the measurement of the channel to be spanned, a slight change of location, a difference in the nature of the soil in which the foundation must be imbedded, will each require certain absolutely necessary changes, which must be made in order to insure a secure and stable structure. The board of supervisors, as a body, had the right to contract for such changes and additions without going through the formality of an advertisement for sealed bids. The exigencies of the occasion, the fact that these defects can only be discovered while the work is in actual progress, render it impracticable, if not impossible, to delay until such advertisements should b© made. To require that each change found necessary or incidental to the construction of the public work should by itself be awarded, after advertisement, to the lowest bidder, would give rise to many complications and inconveniences, which would militate against the best interests of the country. It might often happen that the contractor who had been awarded the original contract would not be the lowest bidder for each particular portion of the extra work, and it would probably happen that Contractors antagonistic to each other, and whose interests would be inimical, would be engaged upon the same structure at the same time, and thus “confusion worse confounded” would arise, should it become necessary for the board of supervisors to endeavor to hold either contractor for a default on his special contract. The existence of this power is expressly recognized in Dixon v. Greene County, 76 Miss., 809, 25 So. Rep., 665; and Groton Bridge Co. v. Warren County, 80 Miss., 218, 31 So. Rep., 711; and to this doctrine we adhere, as being the true interpretation of the law. Boards of supervisors, without previous advertisement, have the right to contract for any extra or special work found necessary during the construction of any public work, where the same appertains to a permanent or necessary part of the structure originally contracted for. Such contracts, like all other contracts made by boards of supervisors, must be evidenced by orders duly entered on their minutes, or by papers in such orders referred to and made a part thereof. In the instant case we find that the contract for the extra work was so awarded to the contractor. The proposal of the contractor stated with certainty and full detail the extra work which, in his judgment, was necessary in the construction of the bridge, and stated with clearness the price to be charged for each specified portion. This proposal, with the accompanying plans and specifications, was by order of the board, duly entered upon its minutes, adopted, and the paper filed with the other plans and specifications of the bridge. This was, on the part of the board, an acceptance of the proposal of the contractor, and bound the county to pay for the extra work upon the bridge at the figures named therein. The fact that the order of the board did not specifically state the contract price, in dollars, arose from the fact that it was impossible for either party to say with any degree of accuracy what the extra work would eventually amount to. It stated, however, what work was to be done, and what price was to be charged for the labor employed and the materials used, and left the ascertainment of the amount due to be arrived at by a simple calculation after the completion of the work. This was the making .of a definite and enforceable contract by both the contracting parties. But the proposal of the contractor embraced more work than was absolutely necessary for the completion of the contract which had been awarded.to him, and included the erection of other structures not necessary or pertaining to the bridge. The fenders or clusters of piles to be driven both above and below the bridge, and totally disconnected therefrom, did not come within the class of work which the board was authorized to award without a compliance with § 340 of the revised code of 1892. This was another and entirely different piece of public work, and if, in the judgment of the board, it was necessary for the public interest that the same should have been constructed, advertisement should have been made and the work awarded to the lowest bidder, as required by law. So far as relates to the fenders above and below the bridge the contract of the board was void, and the appellee cannot recover for such work or the materials furnished therefor. Nor was he, in any view, entitled to compensation for removing a tree near the bridge. If necessary, the removal was to protect his own work, aud was incumbent on him under his, original contract.

This disposes of the main question involved in the case. It is conceded by some of the counsel for the appellant that the decree of the chancellor awarding to appellee the $1,110 retained by the county was correct, but, as other counsel urge us to pass-on that question, we will say that as the contract in this case between appellant and appellee was read and adoptd by the board of supervisors in open session, and as the same was specifically referred to in the order awarding the original contract, it became a part of that contract by the same rule of law which made the plans and specifications of the bridge a part of the contract. The contention that this was simply a memorandum, and not a contract, is based upon a misconception of the language of the decision in Dixon v. Greene County, supra. But a critical analysis of that decision will demonstrate that it was there held that those papers specially referred to in the order of the board, and constituting a part of the same transaction, were in fact acts of the board. If any other rule applied the contractor could not be held at all to any compliance with the plans and specifications of the work awarded to him, for the reason that architect’s plans and specifications, from their very nature, cannot conveniently be entered on the minutes, yet they are invariably and rightly considered an integral part of the contract awarded thereon. Therefore, as the contract in the case was duly and legally entered into, and its conditions binding upon each party, it was a question of fact rightfully submitted to the chancellor to decide under the circumstances in evidence here whether the county had the right to withhold the amount of penalty provided for by the contract between appellant and appellee, or whether the delay was caused by one of the exempted contingencies. He decided adversely to the county on this ground, and we think this decision correct.

Inasmuch as it is impossible for us, from this record, to say with certainty what proportion of the bill for extra work was for material and labor applied for the bridge proper, and what proportion is claimed on account of the erection of fenders above and below the bridge, we must reverse the case so that this may be ascertained in the court below, and appellee given a decree only for so much of said items as is due for work performed and material used on the bridge itself. The amount so found to be due for sucb extra work, and tbe $1,110 wrongfully withheld, is the sum of his rights in this matter.

Reversed and remanded.