Kelley v. Torrington , 80 Conn. 378 ( 1908 )

The defendant claimed that the selectmen, in carrying out the vote of the town for improving the Daytonville road under the Good Roads Act, had no authority to let out the work of the improvement without competition. The court, after reading to the jury from the case of Griswold v. Guilford, 75 Conn. 192,52 A. 742, instructed them as follows: "I charge you, therefore, that under the Good Roads law and the construction which our Supreme Court has put upon it in the case which I have just read to you, the selectmen of the town of Torrington had authority to make an oral or written contract for the work contemplated on the Daytonville road. They also had authority to employ men and teams to work on said road, agreeing to pay them a reasonable price for work done or materials furnished, provided the total amount of the same did not exceed the amount of money appropriated by said town for the doing of said work. Aside from that, however, you will have in the jury room the call for the town meeting authorizing the selectmen to make said improvements and changes in said road."

The case of Griswold v. Guilford furnishes no authority for the proposition stated. The question there, was whether an improvement and change of grade of a highway, made under the Good Roads Act, was made by the town, so as to render it liable to an abutting proprietor, under § 2051 of the General Statutes, for damages arising from the change of grade. We held that it was. But because the improvement is made by the town, it does not follow that the selectmen may proceed with it as in case of an ordinary repair of a highway. The purpose of the Good Roads Act is to encourage the building or improvement by towns of main highways leading to adjoining towns, of a better character than the ordinary town road. The road provided for must be a macadam, telford, or other stone road, or other road satisfactory to the State highway commissioner and the selectmen. To accomplish its purpose the Act affords State aid to towns which choose to take advantage of it; and to obtain the State aid the town must comply with the provisions of the Act in making the improvement. Those provisions prescribe the duties of the selectmen in providing for the improvement. They must, with the approval of the State highway commissioner, select the highway, or portion thereof, to be built or improved. The commissioner must prepare the plans and specifications for the work, after which the selectmen must advertise for bids to do the work according to such plans and specifications. The selectmen and commissioner have the right to reject any or all bids, if in their opinion good cause exist therefor, but otherwise they must award the contract to the lowest bidder; and a written contract, with bond for its faithful performance in accordance with the plans and specifications, must be executed by the bidder, the selectmen, and highway commissioner. Except in two cases the town itself is not permitted to do the work. When the improvement is to cost less than $1,000 it is discretionary with the highway commissioner to allow the town to do the work without competition; and, when the work is submitted to competition, if the selectmen desire, in behalf of the town, to do the work, they may, at least one day prior to the time for opening the bids advertised for, submit a bid to the highway commissioner, to be opened by him only after the other bids shall have been opened, and if such a bid proves to be the lowest the commissioner may award the contract to the town. It is only in these two cases that the town can perform the work and obtain State aid. Unless thus authorized by the commissioner, the work must be done by contract, and let to the lowest satisfactory bidder. It is in this way that the State, which under the Act is to pay two thirds or three fourths of the expense of the improvement (defendant upon whether the grand list of the town exceeds $1,000,000), guards its treasury from being called upon to share in improper and unnecessary expenditures. The Act is public and mandatory. The selectmen are bound to obey it, and those dealing with the selectmen are charged with knowledge of the extent of their powers. If, therefore, the defendant's selectmen were only empowered by it to make the improvements in question under the Good Roads Act, as it claimed to have proved, they were not permitted to let out the work without competition, under either an oral or a written contract, nor to employ men and teams to do the work, agreeing to pay them a reasonable price for the same.

The defendant, therefore, justly complains of that part of the charge above quoted, and also of a later portion wherein the jury were told that if, after Mella Company's bid was made and accepted, but before any contract was made, "Mella Company went to work on said job at the instance and request of said board of selectmen, or with the knowledge, consent or approval of said board, or under such circumstances that said board knew or ought to have known that said Mella Company were engaged in work on said road," then there was an implied contract that the town would pay a reasonable price for the work. If Mella Company's bid was in response to the published call for bids, which the defendant claimed to have proved, and which is made part of the finding, they were bound to sign the written contract and specifications, and give a bond for their faithful performance of the work; for those were conditions of the bids fixed by the call, and they could not, by entering upon the work without signing the contract, either with or without the consent or knowledge of the selectmen, make the town liable upon an implied contract for such work as they might perform. This would be as much an evasion of the statute as though no bids had been called for or made. 2 Page on Contracts, § 1048; McDonald v. Mayor, 68 N.Y. 23; Inge v. Board of PublicWorks, 135 Ala. 187, 33 So. 678; Fox v. New Orleans, 12 La. Ann. 154; Chippewa Bridge Co. v. Durand, 122 Wis. 85,99 N.W. 603.

As regards the requests to charge, some of them were mere statements of law in the abstract, without any setting of facts to make them applicable to the case, and the others called upon the court to charge, as established, certain facts which were in controversy and which the defendant had undertaken to prove. The requests were therefore properly refused.

Upon the trial Devincenti, one of the firm of Mella Company, was asked, against the objections of the defendant, "How much do you owe for work performed on this highway between May 21st and the 6th day of July, for the town of Torrington?" and again: "Did you give anybody any orders on the town?"

The amount which he owed for the work, and the fact that orders had been given upon the town, had no tendency to prove the reasonable value of the work done, or that payment therefor was due. The objections to these questions should have been sustained.

The rulings upon all other questions of evidence upon which exceptions are based, appear to have been correct, and do not call for further comment.

There is error and a new trial is ordered.

In this opinion the other judges concurred.