West Chicago Park Commissioners v. Carmody

Mr. Justice Adams

delivered the opinion of the court.

Section 11 of chapter 105 of the statutes, provides in respect to special assessments for the improvements of parks, as follows: “The remainder of the proceedings in respect to such special assessment shall he in accordance with article IX of the act of the General Assembly entitled An act to provide for the incorporation of cities and villages, approved April 10, 1872, and all acts amendatory thereof, so far as the same may be applicable, and all acts provided therein to be performed by the city or village shall also be performed by said park commissioners or park authorities,” etc. Hurd’s Rev. Stat., p. 1468. By section 18 of the same chapter it is provided: “ All the provisions of said article IX in respect to contracts for making any such improvement, and for the letting of such contracts * * * shall each and all be applicable to such proceedings taken by said park commissioners or park authorities.” Ib. p. 1469.

Section 98 of an act entitled “An act concerning local improvements,” in force July 1, 1897, is as follows:

“Wherever authority of law now exists in corporate authorities in this State to levy special assessments or special taxes for local improvements, and for that purpose to use the proceedings or methods provided by article IX of an act entitled An act to provide for the incorporation of cities and villages’; approved April 10, 1872, in force July 1, 1872, such corporate authorities are hereby authorized to make use of the provisions of this act for such purpose, with the same effect and to the same extent as heretofore authorized to use the provisions of said article IX; and any such corporate authorities as may be hereafter authorized by law to levy such special assessments or special taxes, may, whether otherwise expressly authorized thereto or not, make use of the provisions of this act in like manner.” Hurd’s Rev. Stat. 1905, p. 428.

Section 76 of the same act provides: “All proposals or bids offered shall be accompanied by cash or by a check payable to the order of the president of the board of local improvements, in his official capacity, certified by a responsible bank, for an amount which shall not be less than 10 per centum of the aggregate of the proposal”; and section 77 of the act provides: “But if the said bidder fails, neglects or refuses to enter into a contract to perform said work or improvement, as herein provided, then the certified check accompanying his hid, and the amount therein mentioned, shall be declared to be forfeited to said city, village or town, and shall be collected by it and paid into its fund for the repairing and maintenance of like improvements; and any bonds forfeited may be prosecuted, and the amount due thereon collected and paid into said fund.” By the words “enter into a contract” in the provision last quoted, is meant a formal written and signed instrument evidencing the contract.

The plaintiff Carmody, in response to the advertisement by the park commissioners, made a definite bid for the work, and the park commissioners accepted his bid as made. The bid and its acceptance constituted a contract between the parties, and the execution thereafter of a formal written instrument embodying the terms of the contract would not be the contract itself, but merely evidence of it.

In 1 Parsons on Contracts, section 476, 6th ed., the author says: “Thus an offer to sell a certain thing, on certain terms, may he met by the answer, ‘I will take that thing on those terms,’ or by any answer which means this, however it may be expressed; and if the proposition be in the form of a question, as, ‘I will sell you so and so; will you buy?’ the whole of this meaning may be conveyed by the word ‘yes,’ or any other simply affirmative answer. And thus a legal contract is completed.”

In 7 Eng. & Am. Ency., 2d ed., p. 125, this language is used: “All express executory contracts resolve themselves, upon analysis, into an offer by one of the parties and an acceptance of that offer by the other. The act of acceptance closes the contract, and ordinarily nothing further is required to make the obligations effective. Eo especial formalities are required.”

In Garfielde v. United States, 93 U. S., 242, the United States advertised for proposals for carrying mails. Garfielde made a proposal which the Government accepted, in reference to which the court said: “The Court of Claims holds that the proposal on the part of Garfielde, and the acceptanee of the proposal by the department, created a contract of the same force and effect as if a formal contract had been written out and signed by the parties. Many authorities are cited to sustain the proposition. We believe it to be sound, and that it should be so held in the present case.”

Plaintiff was notified by the specifications for the work, which he signed, and by the statute, that in order for his bid to be considered, it was necessary for it to be accompanied with $500 in money, or a certified cheek for that sum, and he must be presumed to have had knowledge of the law that, if he failed, neglected or refused to enter into a formal contract for the performance of the work, his money would be forfeited. He certainly failed and neglected so to do, and the excuses which he gives for so failing and neglecting are of the most flimsy character. When he called at the defendant’s office February 23, 1906, he does not even show that he was even ready to receive the written contract from the defendant had it been ready. The specifications which he signed require a bond with surety satisfactory to the defendant, for $5,000, guaranteeing the satisfactory completion of the contract within the time limit, and indemnifying the board against any loss or damage which might or could result by or through the carrying out of the contract. Manifestly, he was not entitled to receive a formal contract, executed by the defendant, until he should furnish such bond. Yet, so far as appears from the evidence, he had not such bond with him when he visited defendant’s office February 23rd, nor did he at that time, or any time, offer any surety, in case the defendant was to draft the bond. February 24th vras Saturday and February 25th Sunday, and on February 26th, the day when defendant wrote plaintiff that the contract and bond were ready to be executed, he procured a letter from a physician stating that he was in a very nervous condition and that he, the physician, had advised him to discontinue all business for three months, and February 27th he left for West Baden, Indiana, where he says he remained for ten or twelve days. He never went to defendant’s office again. Our impression from the evidence is, that plaintiff, for some reason best known to himself, desired to relieve himself of the responsibility cast on him by the acceptance of his bid, and perhaps this was worth $500 to him. The contract was let to the next lowest bidder, whose bid exceeded plaintiff’s $1,010, so that defendant lost at least $510 by plaintiff’s default. The plaintiff clearly forfeited the $500 which he deposited with the defendant, and the court erred in sustaining plaintiff’s motion to instruct the jury to find for him, and in overruling defendant’s motion to instruct the jury to find for it.

The judgment will be reversed.

Reversed.