Carthage (Vil.) v. Diekmeier

Hamilton Circuit Court

Carthage (Vil.) v. Diekmeier

20 Ohio C.C. Dec. 806

DecidedMay 11, 1907

StatusPublished

This text of 20 Ohio C.C. Dec. 806 (Carthage (Vil.) v. Diekmeier) is published on Counsel Stack Legal Research, covering Hamilton Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carthage (Vil.) v. Diekmeier, 20 Ohio C.C. Dec. 806 (Ohio Super. Ct. 1907).

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Opinion

GIFFEN, J.

The original action was based upon a contract for making certain street improvements in tbe village of Carthage. The chief contention arises upon the alleged failure of the village clerk to certify a sufficient amount of money in the treasury to pay for the work in full. The jury, by a special verdict, found that the following certificate was attached to the resolution of council awarding the contract to the defendant in error:

“I hereby certify that there is money in the village treasury in the fund from which the above fund is proposed to be drawn for payment of the village portion of the improvement, and not appropriated for any other purpose, sufficient to pay for the same.

L. Hall,

“$2,030. Village Clerk.’’

This certificate suggests three different constructions as to the amount certified in the treasury, either the fixed sum of $2,030, or the multiple of the estimated number of yards and the bid per yard, or an indefinite sum required to complete the work according to the plans and specifications at the rate bid. The first construction is not tenable, because the figures and dollar mark $2,030 on the margin are no more related to the written words nor more significant than if indorsed on [807]*807tbe back of the certificate. The second construction is more reasonable, but cannot be adopted because the plans and specifications contain' the provision that “the quantities named on the estimate are approximate and will not govern the final estimate.” The third and last construction, that the sum is indefinite, accords with the very language of the certificate that there is in the treasury “money sufficient to pay for the same,” and complies substantially with Sec. '2702 Bev. Stat., as amefided (86 O. L. 891) and in force at the time this contract was made. Under this section a definite sum should be certified when ascertainable, but when from the nature of the work to be performed it is impossible to estimate except approximately the quantity thereof, the certificate may be for such sum as may be required to complete the improvement according to the plans and specifications at the rate bid; and the village clerk having in this ease so certified, the contractor is entitled to recover the amount of the final estimate under the original contract less the payments already made.

There being no certificate attached to the supplementary contract he is not entitled to recover for any work performed thereunder, and with this modification the judgment will be affirmed.

Swing and Smith, JJ., concur.

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GIFFEN, J.

The original action was based upon a contract for making certain street improvements in tbe village of Carthage. The chief contention arises upon the alleged failure of the village clerk to certify a sufficient amount of money in the treasury to pay for the work in full. The jury, by a special verdict, found that the following certificate was attached to the resolution of council awarding the contract to the defendant in error:

“I hereby certify that there is money in the village treasury in the fund from which the above fund is proposed to be drawn for payment of the village portion of the improvement, and not appropriated for any other purpose, sufficient to pay for the same.

L. Hall,

“$2,030. Village Clerk.’’

This certificate suggests three different constructions as to the amount certified in the treasury, either the fixed sum of $2,030, or the multiple of the estimated number of yards and the bid per yard, or an indefinite sum required to complete the work according to the plans and specifications at the rate bid. The first construction is not tenable, because the figures and dollar mark $2,030 on the margin are no more related to the written words nor more significant than if indorsed on [807]*807tbe back of the certificate. The second construction is more reasonable, but cannot be adopted because the plans and specifications contain' the provision that “the quantities named on the estimate are approximate and will not govern the final estimate.” The third and last construction, that the sum is indefinite, accords with the very language of the certificate that there is in the treasury “money sufficient to pay for the same,” and complies substantially with Sec. '2702 Bev. Stat., as amefided (86 O. L. 891) and in force at the time this contract was made. Under this section a definite sum should be certified when ascertainable, but when from the nature of the work to be performed it is impossible to estimate except approximately the quantity thereof, the certificate may be for such sum as may be required to complete the improvement according to the plans and specifications at the rate bid; and the village clerk having in this ease so certified, the contractor is entitled to recover the amount of the final estimate under the original contract less the payments already made.

There being no certificate attached to the supplementary contract he is not entitled to recover for any work performed thereunder, and with this modification the judgment will be affirmed.

Swing and Smith, JJ., concur.

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Bluebook (online)

20 Ohio C.C. Dec. 806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carthage-vil-v-diekmeier-ohcircthamilton-1907.