Jaxtheimer v. Sharpsville Borough , 238 Pa. 42 ( 1913 )

Opinion by

Mr. Justice Potteb,

This was a bill in equity filed by L. M. Jaxtheimer, a citizen and taxpayer of the Borough of Sharpsville, Mercer County, Pa., in which, he sought to restrain the borough authorities from carrying out a contract with the firm of William McIntyre & Sons, for the paving of Mercer avenue, under authority of an ordinance passed by the borough council on September 5, 1911, over the veto of the burgess, in pursuance of the Act of May 12, 1911, P. L. 288. It is conceded that the ordinance was regularly adopted, but the legality of the contract for paving, made in pursuance thereof, is questioned. The trial judge made full and complete findings of facts, and concluded that the provisions of the Acts of 1851 and 1911 have been complied with by the borough authorities, and that the plaintiff’s bill should therefore be dismissed. Exceptions were filed to the findings of the trial judge which were overruled, and the final decree was entered dismissing the bill. The plaintiff has appealed. We think that the thorough discussion of the questions involved by the trial judge, amply justifies his conclusion, and leaves but little for us to add.

The first objection is that the contract was made too soon, that is, before the ordinance had been posted and advertised for a period of ten days after its final passage, as required by the Act of April 3,1851, Sec. 3, P. L. 320. The validity of this objection depends upon whether the contract with William McIntyre & Sons is to be regarded as having been entered into by the passage by the council of a resolution of acceptance upon September 5, 1911, or whether, the real contract for paving was made upon September 26,1911, which was the date upon which the written contract was executed. It appears from the ■seventeenth finding of fact by the trial judge that on September 5, 1911, after the passage of the ordinance over the veto of the burgess, bids for paving were received and opened, and “it was unanimously resolved that the bid of William McIntyre & Sons be accepted, subject to the entering into of a contract by them with the Borough of Sharpsville, as provided for in the printed specifications.” We agree entirely with the court below, that the terms of the acceptance itself clearly imply that a contract was not intended to be entered into at that time, and that they show with equal clearness that a contract was to be entered into later on. The words of the resolution clearly contemplate the formal execution of a contract in accordance with the printed specifications, and the furnishing of bonds, as required by the specifications. A formal contract in strict conformity to these requirements was entered into between the borough and the firm of William McIntyre & Sons, on September 26, 1911, twenty-one days after the passage of the ordinance, nineteen days after its posting, and thirteen days after its publication. The work whose performance appellant here sought to enjoin, is to be carried out under this written contract of September 26, and not under any agreement arising out of the formal acceptance of the bid upon September 5th. That was evidently but a step in the negotiations intended to lead to a written contract which would fully comply with the specifications. A satisfactory statement of the law applicable to such a situation is found in 9 Cyc. 267, where it is said: “An acceptance, to be effectual, must be identical with the offer and unconditional. Where a person offers to do a definite thing and another accepts conditionally or introduces a new term into the acceptance, his answer, is either a mere expression of willingness to treat or it is a counter proposal and in neither case is there an agreement.” The case of Sparks v. Pittsburgh Co., 159 Pa. 295, illustrates the principle. There the plaintiff made a written proposition to drill oil wells. At the end of the proposition the officers of the defendant company wrote, “Accepted, contract to be drawn in accordance with the above proposition or bid.” And the following words were added: “This is about right and will be satisfactory to the Pittsburgh Company.” This court, speaking by Mr. Justice Thompson, said: “The appellant’s contention is that the proposition itself constituted the contract, and the sinking of those wells at Ellwood the breach of it.” The language at the end of the proposition, to wit, “Contract to be drawn in accordance with the above proposition or bid,” and “This is about right and will be satisfactory to the Pittsburgh Company” clearly imports that it was not intended to be the actual agreement, but simply the basis of one, to be subsequently perfected by a contract properly prepared. In the present case we think it is equally clear that the resolution of acceptance adopted by the council, was only intended as authority for the making of the written contract which was executed on September 26, at which time the ordinance had been posted and advertised more than the required ten days.

Another ground of objection to the contract is that while it was provided in the ordinance that the specifications for the paving should be prepared or procured by the burgess and paving committee of council, they were in fact prepared or procured and reported to council by the borough engineer and the street committee. We see no merit in this objection. The court below found, as set forth in its opinion on the exceptions, from testimony taken after the original findings were made, that there was no special paving committee of the borough council, and that what was intended by that term, was the standing street committee; and that for the current year, the street committee and the paving committee were one and the same, and made up of the same members of the borough council. Whether the burgess or the borough engineer acted in preparing the specifications was of no special consequence. The committee were authorized either to prepare or procure specifications, and this gave them the right to call for such assistance as they might desire. We agree with the trial judge that the terms of the ordinance in this respect were merely directory, and we think that the council had the right to accept such specifications as seemed to them most fit, whether presented by the street committee or obtained from some other source. If the burgess and the committee, in literal compliance with the terms of the ordinance, had united in preparing and reporting specifications, it was still within the power of the council to reject such specifications, and to obtain and adopt others from another source.

The assignments of error are all overruled; and the decree of the court below is affirmed.