Mr. Justice Scholfield
delivered the opinion of the Court:
When this ease was before us at a former term, (Sexton v. City of Chicago, 107 Ill. 323,) the only question considered or decided related to the rule of law applied by the Superior Court to the facts before it in determining what was the contract between Sexton and the city. That court had, in rendering judgment, as the record disclosed, held that the city could not be estopped to deny that the plans and tracings furnished to Sexton by those in charge of the office of the department of public works, upon which to make estimates for his bid or proposals, and, afterwards, to work by, were the plans for the doing of the work “on file in the office of the department of public works,” within the contemplation of the contract. Entertaining this view of the law, the judgment in favor of the defendant logically followed, for, in that view, the contract was properly forfeited to the extent it was so declared, and the evidence disclosed no ground upon which a judgment could be rendered for the plaintiff if he was in the wrong in his construction of the contract. No question, therefore, that might have been pertinent had the Superior Court held that there was ground of recovery sustained by the evidence, was reached. On the trial now brought in review, the Superior Court held, in obedience to the direction of this court in the opinion filed upon reversing the former judgment, that the city was estopped to deny that the plans and tracings furnished to Sexton by those in charge of the office of the department of public works, upon which to make estimates for his bid or proposals, and, afterwards, to wwk by, were the plans for the doing of the work “on file in the office of the department of public works, ” within the meaning of those words as used in the written contract between the city and Sexton; and having so held, other questions not pertinent in the view held by the Superior Court upon the former trial, arose during the progress of the trial, and were ruled upon by the court.
We entirely concur in the ruling of the Superior Court on the first ground urged for a reversal of the judgment below, ■which is, that that court erred in not holding that the contract between Sexton and the city is, by its terms, divisible, and that therefore a forfeiture of a part did not affect the residue. In our opinion, this construction of the contract is not admissible. The undertaking of Sexton'is, “for and in consideration of the payments to be made, * * * to furnish, deliver, set up, place and fix complete all the iron work required in the erection of a building for a city hall, ” etc.; and the undertaking of the city is “to pay to said party of the first part, when this contract shall be wholly carried out and completed on the part of said contractor, and when said work shall have been accepted by said mayor, the sum of $105,-302.69.” It is true the amount is made up by stating the estimated cost of each story separately, and the roof, and then adding the whole together; but this was, evidently, merely for the purpose of furnishing the data upon which the estimate was made, for there is nowhere any agreement to receive and pay for the work b.y stories. On the contrary, it has been seen payment is to be made of the aggregate amount when the contract shall be wholly carried out. The provision authorizing estimates to be made is conditional upon the rate of progress of the work being satisfactory to the mayor. But the language in nowise limits the estimates by the stories, and it expressly provides that fifteen per cent of the estimates shall be reserved, not until the completion of the work on the story on which the estimates are made, but until the “final completion and acceptance of said work. ” The power to declare a forfeiture, given to the mayor by the contract, is not an arbitrary power, to be exercised by him capriciously, but it is, in its nature, judicial, and can be only exercised when acting in good faith and for reasonable cause, and then its exercise is not limited to stories. It may be for the part of a work on a given story as well as for the whole of the work on a story. We are clear in the opinion that the contract is an entire one, in which the consideration for each undertaking is the consideration for every undertaking, and in which the benefits presumed to result from the performance of the entire contract, instead of benefits presumed to result from the performance of separate parts of the contract, were in anticipation.
But upon the next ground urged for a reversal of the judgment below, the law is, in our opinion, with appellant. The , Superior Court was asked to hold, but refused to do so, that so far as materials were furnished and work done under the special contract, the price therefor must be governed by its stipulations, and proceeded to hear evidence and render judgment for the value of such materials and work, entirely disregarding the stipulations of the contract. The same question was directly before this court in Folliott v. Hunt, 21 Ill. 654, in Evans v. Chicago and Rock Island Railroad Co. 26 id. 189, Holmes v. Stummel, 24 id. 370, and in Dobbins v. Higgins, 78 id. 440, and it was held that, in cases like the present, so far as the work is done and materials furnished, to recover for which the suit is brought, under a special contract, its stipulations must govern as to the value of such work and materials. The question was not before us in Lincoln v. Schwartz, 70 Ill. 134, nor in Cook County v. Harms, 108 id. 151. In the first named of these eases the rule was recognized that the special contract affords the rule of damages, so far as it can be traced or followed, but it was held that, under the evidence, it did not appear that the judgment would have been any more favorable to the appellant had the correct rule been adopted, than it was under the rule laid down in the instruction, and that therefore there was not such error as would authorize a reversal. In the other case, the only question having any apparent analogy was what was to be regarded as within the meaning of the terms “changes, additions and alterations, ” as used in the contract; and we held that any material departure from the plans and specifications, resulting in a new and substantially different undertaking, could not be regarded afe within their meaning, and that the contractor, in case of such material and substantial change, is not limited or governed by the original contract as to his compensation for the work. In that case, the work was not done under or pursuant to the terms of the contract, but entirely beyond and outside of its terms.
This question was not before us when the case was here before. It is undoubtedly true, as stated by the judge of the Superior Court in giving his reasons for his rulings, that in the opinion then filed it was said: “Whether the city, under the circumstances, was estopped from denying the correctness of the plans thus furnished appellant, and for that reason had no right to-declare a forfeiture of the contract, or whether, hy reason of a mutual mistake, caused by the negligence of the city, as to the subject matter of the contract, no contract was created between them, it is not important to inquire, as in either case the law is with the appellant, and he therefore had the right to acquiesce in- the forfeiture of the contract, and proceed, as he did, upon a quantum meruit for the materials and his services.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Scholfield
delivered the opinion of the Court:
When this ease was before us at a former term, (Sexton v. City of Chicago, 107 Ill. 323,) the only question considered or decided related to the rule of law applied by the Superior Court to the facts before it in determining what was the contract between Sexton and the city. That court had, in rendering judgment, as the record disclosed, held that the city could not be estopped to deny that the plans and tracings furnished to Sexton by those in charge of the office of the department of public works, upon which to make estimates for his bid or proposals, and, afterwards, to work by, were the plans for the doing of the work “on file in the office of the department of public works,” within the contemplation of the contract. Entertaining this view of the law, the judgment in favor of the defendant logically followed, for, in that view, the contract was properly forfeited to the extent it was so declared, and the evidence disclosed no ground upon which a judgment could be rendered for the plaintiff if he was in the wrong in his construction of the contract. No question, therefore, that might have been pertinent had the Superior Court held that there was ground of recovery sustained by the evidence, was reached. On the trial now brought in review, the Superior Court held, in obedience to the direction of this court in the opinion filed upon reversing the former judgment, that the city was estopped to deny that the plans and tracings furnished to Sexton by those in charge of the office of the department of public works, upon which to make estimates for his bid or proposals, and, afterwards, to wwk by, were the plans for the doing of the work “on file in the office of the department of public works, ” within the meaning of those words as used in the written contract between the city and Sexton; and having so held, other questions not pertinent in the view held by the Superior Court upon the former trial, arose during the progress of the trial, and were ruled upon by the court.
We entirely concur in the ruling of the Superior Court on the first ground urged for a reversal of the judgment below, ■which is, that that court erred in not holding that the contract between Sexton and the city is, by its terms, divisible, and that therefore a forfeiture of a part did not affect the residue. In our opinion, this construction of the contract is not admissible. The undertaking of Sexton'is, “for and in consideration of the payments to be made, * * * to furnish, deliver, set up, place and fix complete all the iron work required in the erection of a building for a city hall, ” etc.; and the undertaking of the city is “to pay to said party of the first part, when this contract shall be wholly carried out and completed on the part of said contractor, and when said work shall have been accepted by said mayor, the sum of $105,-302.69.” It is true the amount is made up by stating the estimated cost of each story separately, and the roof, and then adding the whole together; but this was, evidently, merely for the purpose of furnishing the data upon which the estimate was made, for there is nowhere any agreement to receive and pay for the work b.y stories. On the contrary, it has been seen payment is to be made of the aggregate amount when the contract shall be wholly carried out. The provision authorizing estimates to be made is conditional upon the rate of progress of the work being satisfactory to the mayor. But the language in nowise limits the estimates by the stories, and it expressly provides that fifteen per cent of the estimates shall be reserved, not until the completion of the work on the story on which the estimates are made, but until the “final completion and acceptance of said work. ” The power to declare a forfeiture, given to the mayor by the contract, is not an arbitrary power, to be exercised by him capriciously, but it is, in its nature, judicial, and can be only exercised when acting in good faith and for reasonable cause, and then its exercise is not limited to stories. It may be for the part of a work on a given story as well as for the whole of the work on a story. We are clear in the opinion that the contract is an entire one, in which the consideration for each undertaking is the consideration for every undertaking, and in which the benefits presumed to result from the performance of the entire contract, instead of benefits presumed to result from the performance of separate parts of the contract, were in anticipation.
But upon the next ground urged for a reversal of the judgment below, the law is, in our opinion, with appellant. The , Superior Court was asked to hold, but refused to do so, that so far as materials were furnished and work done under the special contract, the price therefor must be governed by its stipulations, and proceeded to hear evidence and render judgment for the value of such materials and work, entirely disregarding the stipulations of the contract. The same question was directly before this court in Folliott v. Hunt, 21 Ill. 654, in Evans v. Chicago and Rock Island Railroad Co. 26 id. 189, Holmes v. Stummel, 24 id. 370, and in Dobbins v. Higgins, 78 id. 440, and it was held that, in cases like the present, so far as the work is done and materials furnished, to recover for which the suit is brought, under a special contract, its stipulations must govern as to the value of such work and materials. The question was not before us in Lincoln v. Schwartz, 70 Ill. 134, nor in Cook County v. Harms, 108 id. 151. In the first named of these eases the rule was recognized that the special contract affords the rule of damages, so far as it can be traced or followed, but it was held that, under the evidence, it did not appear that the judgment would have been any more favorable to the appellant had the correct rule been adopted, than it was under the rule laid down in the instruction, and that therefore there was not such error as would authorize a reversal. In the other case, the only question having any apparent analogy was what was to be regarded as within the meaning of the terms “changes, additions and alterations, ” as used in the contract; and we held that any material departure from the plans and specifications, resulting in a new and substantially different undertaking, could not be regarded afe within their meaning, and that the contractor, in case of such material and substantial change, is not limited or governed by the original contract as to his compensation for the work. In that case, the work was not done under or pursuant to the terms of the contract, but entirely beyond and outside of its terms.
This question was not before us when the case was here before. It is undoubtedly true, as stated by the judge of the Superior Court in giving his reasons for his rulings, that in the opinion then filed it was said: “Whether the city, under the circumstances, was estopped from denying the correctness of the plans thus furnished appellant, and for that reason had no right to-declare a forfeiture of the contract, or whether, hy reason of a mutual mistake, caused by the negligence of the city, as to the subject matter of the contract, no contract was created between them, it is not important to inquire, as in either case the law is with the appellant, and he therefore had the right to acquiesce in- the forfeiture of the contract, and proceed, as he did, upon a quantum meruit for the materials and his services. ” And if the case had been one wherein the court would have been authorized to find, under the evidence, that no contract was, in fact, created between the parties, of course then there would have been no terms of contract to apply to the value of the labor and materials. But the court did not then find, nor would it have been authorized to have found, that there was no contract between the plaintiff and the defendant, and, as the present record is understood, there is really no question as to the existence of a contract. An. instrument in writing, expressing the mutual undertakings and obligations of the parties, was signed by appellee and those authorized to represent appellant. This constituted some kind of a contract between the parties, and in an action at law growing out of it, it was for the court to declare its legal effect. If through fraud, accident or mistake, material matters were omitted, or the minds of the contracting parties, in fact, never came together, the remedy was in equity, to rectify and reform, or rescind and cancel, the contract. Mercantile Insurance Co. v. Jaynes et al. 87 Ill. 200; Andrus et al. v. Mann, 92 id. 40; Bispham’s Principles of Equity, (2d ed.) sec. 468, p. 515.
It was claimed by the present appellee, who was the appellant then, that the plans or tracings furnished him by those in charge of the office of the department of public works, upon which to make estimates for his bid or proposals, and, after-wards, to work by, were to be construed and read as part of the contract, while the present appellant, who was the appellee then, denied this, and claimed that, instead of such plans or tracings, certain other plans or tracings, spoken of by the. witnesses as “originals,” and on file in the office of the department of public works, were to be construed and read as part of the contract. That- one or the other of these should be so construed and read, was settled by the language of the contract, and we held that it should be the former. It was very true, as said in the opinion, that in any view, whether there was a contract or not, there might be a recovery under a quantum meruit and a quantum valebant for the value of the labor performed and materials furnished, but the remark was unnecessary, and not intended as a declaration that there was, in fact, no contract proven. A contract was proven then, and is now proven, and the value of the work done and materials furnished must be fixed by-the stipulations of that contract, so far as they can be applied. In all other respects the rulings below are, in our opinion, free of objection.
The question of estoppel was settled by the former opinion. The propositions of law held by the Superior Court in this respect are somewhat strained. They seem to go beyond any decision of this court, and, as we conceive, they go beyond what the case requires for its decision. But if, in the rather extreme hypothesis contemplated in the propositions held by the court, the court was of opinion that the city would have been estopped, much more must the court have been of opinion that the city was estopped upon the facts actually before the court, as disclosed by the record; and so it must follow that any error in that ruling was harmless. We hold, simply, that a municipal corporation may be estopped by the action of its proper officers, when the corporation is acting in its private, as contradistinguished from its governmental, capacity, and has lawful power to do the act. Here, the' city had power to make a contract to do the work, and furnish the materials, clone, and furnished by- Sexton. It owed the duty to prepare and furnish him with accurate plans and tracings. It had an office where these were to be kept, but, of necessity, that office was to be in charge of some one with power to preserve the maps, tracings, etc;, and hand them out for the inspection of those interested. It could not be allowed that everyone desiring to examine the plans and tracings should be permitted to enter the office and .hunt and select for himself. The city owed the duty to have a competent person in charge of this'office, and to see that he discharged his duty. His act in selecting and handing out plans and tracings was its act. There is nothing new in thus holding a municipality responsible for the want of fidelity of those who act for it. Suits of that kind are of daily occurrence. The liability thus imposed is not within the constitutional and statutory limitations in regard to-the creation of indebtedness.
For the error in regard to the measure of damages, the •judgments of the Appellate and Superior Courts are reversed, and the cause is remanded to the Superior Court for further proceedings consistent with this opinion.
Judgment reversed.