Summary
In Hunt v. City of Utica (18 N.Y. 442) and Weston v. City of Syracuse (158 id. 274) a similar clause was embodied in the agreement in each instance, and in fact it is quite common whenever local improvements are made in a city, and we do not find that it has received the condemnation of the courts.
Summary of this case from Kronsbein v. City of RochesterOpinion
December Term, 1858
Ward Hunt, appellant, in person.
Francis Kernan, for the respondent.
The first question in this case, and the only one which need be considered if that be decided against the plaintiff, is whether the defendants, by the contract under which the work in question was performed, undertook absolutely to pay Cossleman for the work or to pay for the same only by assessing and collecting the sum to be paid according to the provisions of their charter, and applying it to that object. If the latter was their undertaking, the plaintiff failed to establish a cause of action.
The contract is to be learned from the notice of the defendants inviting proposals for the work, the proposal made and bond executed by Cossleman, and the acceptance of the proposal by the common council of the defendants. These constitute the contract, and they must be considered and construed together in seeking for the intention of the parties and the obligations they assumed. The notice specifies the work to be done: the manner of performance: when to be commenced and completed; and states that the expense of the work will be assessed pursuant to the provisions of the charter of the city. The proposal is to do the work at specified prices for the several parts of it according to the plans and specifications, and bond. The bond is conditioned for the construction of the work according to the plans and specifications, c., and the acceptance by the common council of the proposal is without any qualification; the entry in their book of records being, that it "was deemed the most reasonable and accepted."
The clause in the notice in reference to the assessment of the expense of the work, for the performance of which proposals were desired, must be deemed to have been inserted for some purpose; and this purpose must, if practicable, be ascertained, and have effect in determining what was the substance of the contract. It is a general rule that in its exposition effect should, if possible, be given to every part of a contract. This notice was published in pursuance of a provision in the charter of the city for a similar notice such a case, which provision has apparently a twofold object: to inform the citizens of the pending application for the improvement, and when it will be finally acted upon, and to call for proposals to do the work; but the charter does not require any such clause in the notice as that in question. It is hardly reasonable to suppose that the common council deemed it important to insert that clause in the notice in this case for the information of the citizens; for it must be assumed that the citizens were so far acquainted with the charter of the city as to know, what appears by it, that it imposes upon the common council the duty of assessing the expense in the case of such an improvement precisely as if that clause is expressed. It is not apparent that it would be of any service, so far as the citizens were concerned. It must then be regarded, if it had any purpose, as designed for those who might propose for the work; and it is not easy to see how it would be of the slightest moment to them unless it would enter into a contract formed by the making of a proposal under the notice, and the acceptance of the proposal by the city. If the city would be bound to pay the expense before it should be assessed and collected with due diligence, it would be wholly immaterial to a contractor how the city would raise the money. But viewing the provision as intended to be a part of the contract, its importance in the notice, in reference to making proposals, is obvious, as it would bind the contractor for the work to look for his compensation to the proceeds of an assessment, if proper diligence was employed by the city, after the completion of the work and the ascertainment of its cost, to raise the amount in that mode. I am unable, after much consideration, to attach any other purpose to this clause, and this appears to me to be a plain and sensible one. The common council probably were not willing, if they could do so, to subject the city to the payment of this expense otherwise than by raising the amount by assessment and then handing it over to the contractor; and a contract to this effect would seem to be precisely what the charter contemplates in reference to paying for such improvements. The charter may properly be regarded, in giving a construction to the contract, as both parties must be considered to have acted in view of it; the common council because it prescribes their powers and duties, and the contractor because it is expressly referred to in the notice, and because it was his duty, in making the contract, to look into the charter and learn the duties and powers of the public agents with whom he was dealing.
The statement in the notice, "the expense thereof to be assessed," being a part of the contract, obviously imports that the demand of Cossleman was to be paid through such an assessment; and there being no other express provision for payment none other exists. The provision made excludes the idea of any other.
Entertaining these views of the case, I think the nonsuit was properly granted, and that the judgment should be affirmed.
HARRIS, J., dissented; all the other judges concurring,
Judgment affirmed.