Mutchler v. City of Easton , 148 Pa. 441 ( 1892 )

Opinion by

Mr. Justice Green,

In the case stated the various papers involved in the contention between the parties are referred to as exhibits, and each of them is made a part of the case stated. Thus, the advertisement of the city engineer for proposals for the work in question is referred to as “ Exhibit 3.” The plans and specifications, with a copy of the advertisement, and the plaintiff’s proposal, are mentioned as “ Exhibit 2.” A copy of the city treasurer’s receipt, given to the plaintiff for the certified check for $2,000, deposited with his bid, was described as “ Exhibit 4,” and all of these exhibits are made part of the case stated.

The treasurer’s receipt, therefore, is as much a part of the facts agreed upon as any other of the papers. There is no averment in the case stated that the treasurer had no authority to sign and deliver the receipt, precisely as it was given, and we know of no reason why it must not be regarded as being a part of the contract between the parties. We could make no assumption to the contrary, without importing into the contract, or the controversy, a fact which the case-stated does not contain, and that, of course, wo cannot do. Regarded as the written expression of one of the terms of the contract, the case becomes very much simplified, and the receipt practically accomplishes the solution of the contention. It is in these words : “ Received of Mr. S. JB. Mutchler, on behalf of the city of Easton, a certified check on Phillipsburg N. J. Nat. Bank, for the sum of two thousand dollars, subject to the conditions named in the proposals to the department of sewers, for constructing certain main and lateral sewers, of even date herewith, which check, if the same shall not be declared forfeited by the said department of sewers, will be returned to the said S. B. Mutchler upon surrender of this receipt.

“ (Signed) James McCauley,

“ City Treasurer of Easton, Pa.

“ Easton, Pa., March 14, 1890.”

According to the plainly expressed terms of this paper, the check was to be returned to the plaintiff, upon the surrender of the receipt, “ if the same shall not be declared forfeited by the said department of sewers.” We are bound to assume that the check never was declared forfeited by the department of sewers, because no such fact is expressed in the case stated.

In Berks Co. v. Pile, 18 Pa. 493, we said that, “ in a case stated, whatever is not distinctly and expressly agreed upon, and set forth as admitted, must be taken not to exist.” In Phila. & Read. R. R. Co. v. Waterman, 54 Pa. 337, we said: “A case stated, when well drawn, is like an issue developed by special pleading, and presents, in a single point, or in a series of points, the very matter that is up for judgment. The court cannot go beyond the issue that is thus brought upon the record, however manifest the justice that might be reached by going farther. The duty of the court is to decide the case that is stated, and to presume that what is not included was kept out for sufficient reason.”

In Diehl v. Ihrie, 3 Wh. 143, we held that a presumption of one fact from others is an inference of fact, and, although according to a rule of law, the jury may be bound to make the presumption, yet the court cannot make it without them : see, also, Seiple v. Seiple, 133 Pa. 460.

Adjudging the case upon these principles, we find that the plaintiff, when he deposited his check with the city treasurer, was entitled to have it back again, unless it was declared forfeited by the department of sewers; that no such forfeiture was ever declared, and therefore he is entitled to his check, of its equivalent in money. The provision in the notice to contractors, “ that the check is to be forfeited to the city of Easton, if the successful bidder does not enter into contract with the city and furnish a bond,” etc., would doubtless have justified a declaration of forfeiture by the department of sewers, but no such declaration was ever made.

The condition upon which the plaintiff deposited his check was, that he was entitled to have it back if no declaration of forfeiture was made by the department of sewers. That was his contract, and, presumably, it was also the contract of the city, and the contract of the parties is the law of their relation. The city has manifested its willingness to refund the money whenever it shall be judicially determined that it has the power to do so. As the city has the undoubted power to pay debts that are due, according to the terms of its contracts, there can be no question on this subject.

The judgment of the court below is reversed, and judgment is now entered on the case stated in favor of the plaintiff, and against the defendant, for the sum of $2,000, without costs.