Hogan v. Shields , 20 Mont. 438 ( 1898 )

Pemberton, C. J.

The only material question raised by this appeal is as to whether the court erred in directing a non-suit against the plaintiff.

The appellant contends that there was evidence tending to show the existence of the contract set out in the complaint, and that it was therefore error on the part of the court to direct a nonsuit, as has been uniformly held in this jurisdiction.

In order to determine whether there was in fact any contract entered into between the parties for the construction of the building mentioned, we must first ascertain what the plaintiff had to do in order to have the contract awarded to him. It is very evident that both parties understood that the signing of a written contract, and the entering into a sufficient bond by plaintiff for the performance of the contract according to the plans and specifications prepared by the architect of the building, were prerequisites to the final awarding of the building contract to plaintiff by the defendant. The plaintiff admits this in his testimony. It is not contended that the defendant did not so understand it. The contract, under this understanding of the parties, could not have been completed or finally entered into without executing such written contract and bond by plaintiff. The bid for the contract, the awarding of it to plaintiff as the lowest bidder, the execution of the written contract to construct the building according to the plans and specifications thereof, and the giving of the bond for the faithful performance of the contract, were all parts of one transaction, and were all necessary to be done by the party upon whom the doing of such acts devolved before it could at all be claimed that any contract had been entered into between the parties for the constuction of the building. (Watson v. O'Neil, 14 Mont. 197, 35 Pac. 1064.)

It cannot be contended that the defendant ever understood, or could have understood, that he let the contract to plaintiff to construct the building simply because plaintiff’s bid was the lowest. Both parties understood that other things were to be done in order to complete the contract. The plaintiff himself testifies, in substance, that the defendant was urgent in relation to having him give the bond at once, but that he was delayed in getting a particular bondsman; that, when he was requested to get other bondsmen, he refused to do so, and said to the defendant that if he would not wait a few days for the return of the man he wanted for a bondsman, he would go no further in endeavoring to get a bond; and it is clear that thereafter the plaintiff abandoned all efforts to get a bond. The plaintiff having refused according to his own evidence to execute and deliver to defendant a good bond, as he knew he was required to do in order to complete the contract for the construction of the building, we think the evidence utterly fails to show, or even tends to show, that the contract sued on, or any contract for the construction of the building mentioned, was ever entered into between the parties.

The evidence, we think, positively shows that there never was such a contract, or any contract, entered into between the parties for the construction of the building. There was no error in the action of the court in directing a nonsuit.

The judgment appealed from is affirmed.

Affirmed.

Pigott, J., concurs. Hunt, J., not sitting.