This case was so tried as very imperfectly to present for our consideration the important questions which seem to be involved.
If the ordinance for paving the street was regularly passed and the proceedings prior to opening the bids were regular and valid, then we are of opinion that the plaintiff had a valid *Page 258 contract with the city for the breach of which he can claim damages. It is provided in section 1 of chapter 308 of the Laws of 1861, that "all contracts by or on behalf of the mayor, etc., of New York, shall be awarded to the lowest bidder for the same respectively with adequate security, and every such contract shall be deemed confirmed in and to such lowest bidder, at the time of the opening of the bids, estimates or proposals therefor, and such contract shall be forthwith duly executed in the name of said mayor, etc., by the head of the department having cognizance thereof, with such lowest bidder." The bids for the work to be done under the ordinance were opened October 15, 1869, and it was publicly announced that the plaintiff was the lowest bidder, and the contract therefor was awarded to him. The proposal was accompanied by a bond executed by two sureties, who justified in the amount required of them in the specifications upon which the proposal was based. When the board awarded the contract they must have determined not only that the plaintiff was the lowest bidder, but the lowest "with adequate security," and hence they must have approved of the sufficiency of the security. For the purposes of the section above recited, we think no other approval of the security was needed. The approval subsequently indorsed upon the bond on the 22d of December, is simply evidence, if any was needed, that the security, at the time the contract was awarded, was adequate.
The security mentioned in section 38 of chapter 446 of the Laws of 1857 is the security required to be given by the contractor on entering into the formal contract after the contract has been awarded, and that is required to be approved by the comptroller. But whether the security which accompanies the proposal is in proper form and adequate is to be determined by the contracting board before they award the contract. Hence, upon the assumption that there was a valid ordinance, the plaintiff obtained a valid contract by virtue of section 1 cited.
Having such a contract, it was binding upon both parties and could not be destroyed by the subsequent action of the *Page 259 common council rescinding the ordinance. That action might arrest the performance of the contract, but could not destroy its obligation. The city could break its contract, but would remain liable for damages for such breach.
Upon the assumption that plaintiff was entitled to recover damages, there was no error in taking the quantities mentioned in the specifications as prima facie the amount of work to be done. It was incumbent upon him to show for how much less than the contract price he could have performed the work, and then the jury would have had facts from which they could have arrived at the amount of his damages.
These views are expressed with a view to the new trial which we have concluded to grant. We think it sufficiently appears that the ordinance referred to was not legally passed, and was, therefore, void at the time the bids were opened and the formal award made. The complaint proceeds upon the assumption that the proceedings awarding the contract were irregular and void, else it would have contained no reference to the action of the commissioners under the act chapter 580 of the Laws of 1872. The answer alleges that the ordinance was invalid, and there was proof at the trial prima facie showing that it was invalid; and we think it was assumed at the trial, and even upon the argument before us, that it was invalid. If the ordinance and the proceedings under it had been valid, there would have been no occasion for the plaintiff to submit his contract to the commissioners appointed in the act of 1872. The submission of his contract to such commissioners was a confession, but not a conclusive one, on his part, that the proceedings resulting in such contract were irregular and invalid, and that he sought thereby to have the same, by the effect of the certificate of such commissioners, confirmed. If his contract was regular and valid when awarded to him, then he did not need the action of such commissioners, and they had no function in reference to it.
The ordinance not having been legally passed, all proceedings under it were wholly invalid, and the plaintiff obtained no valid contract and no rights against the defendant. The invalid *Page 260 ordinance was "annulled, rescinded and repealed" on the 18th day of December, 1869. The plaintiff could not complain of the last ordinance, as he had acquired no rights under the prior ordinance. That was invalid, and by the last ordinance was completely wiped out, as if it had never been.
It is said on behalf of the plaintiff, that the last ordinance was invalid because not published. But the law (section 37, chapter 446 of the Laws of 1857) did not require it to be published, as it did not involve the appropriation of any money, or any of the other matters mentioned in the statute.
As the first ordinance was invalid, there was nothing for submission to the commissioners under the act of 1872. Long before that act was passed and while plaintiff had no rights under the award to him, the ordinance had been annulled, and there was nothing for the commissioners to act on.
It is very doubtful whether the plaintiff could, upon any proof he could make, recover the $3.50 per day for doing the work in less time than two hundred days; but as the item is a small and unimportant one, and may not be involved upon another trial, we will notice it no further than to say that to recover for that item, the plaintiff would be obliged at least to show not only that he could do the work in less than one hundred days, but also that he would so do it; and also that by so doing it the work would not cost more than it would to take the whole two hundred days in which to do it.
The judgment should, therefore, be reversed and new trial granted, costs to abide event.
All concur.
Judgment reversed. *Page 261