I dissent, as I do not think that there was a contract by which the defendant undertook to do the work, for a failure of which the plaintiff lias recovered a judgment. The defendant’s bid to do the work was'accepted, and the plaintiff forwarded to defendant a contract to be executed. That contract contemplated the giving of a bond by the defendant which would be satisfactory to the plaintiff before the contract became operative. The defendant executed the contract and forwarded the sanie with a bond to the plaintiff, but the plaintiff refused to accept the bond, prepared and forwarded to the defendant a new contract with a new bond to be executed by the defendant, and that bond was never executed, nor was the new contract ever executed. When the receivers were appointed, there being no binding contract in existence, the action of the receivers in obtaining authority to complete all the contracts made by the defendant cannot be considered as a formal execution of the new contract; nor do I understand from the record that the receivers-ever formally executed the new contract. They certainly never signed a new contract, or assumed to bind either themselves or the company to carry out the contract which had been executed by the defendant, but which had been rejected by the plaintiff. The acceptance by the company of the property transferred to it by the receivers when they were discharged was not assuming the obligation that the receivers had incurred as to executory, contracts which had never been formally entered into, and upon which no work had been done or obligation incurred by the receivers. The defendant asked the court to charge that the acts of the receivers were not the acts of the corporation; .and that if the jury found that the alleged contract was not entered into and accepted by both parties before the appointment of the receivers, their verdict must be for the defendant. The court refused these requests, and the defendant excepted. I think this was error. The complaint alleged the *320making of the contract by the corporation, a copy of ;wbicli was annexed to the complaint. There was no allegation in the complaint that a contract had been made with the receivers which had been assumed by the corporation. The only contract alleged in the complaint, therefore, was that made by the defendant corporation, and if no enforcible contract was niitde by the defendant corporation upon this com¡)laint, I do not think that the action could be sustained. Any ratification or agreement made by the receivers could not be the basis of an action for damages for a breach of a contract alleged to have been made, not by the receivers, but by the corporation before the appointment of the receivers, and in view of the form of the action I think the defendant, was entitled to have ■the jury instructed that the plaintiff could not recover unless he proved a binding contract with the corporation.
I think the judgment slioujd be reversed.
Judgment modified as directed in opinion, and as modified affirmed, without costs. ■ Settle order on notice.