Appeal by plaintiff from the Circuit Court of Henry county;
the Hon. LEONARD E. TELLEEN, Judge, presiding. Heard in this
court at the February term, 1953. Judgment affirmed in part and
reversed in part. Opinion filed April 20, 1953. Rehearing denied
May 5, 1953. Released for publication May 5, 1953.
MR. JUSTICE WOLFE DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 5, 1953
On October 14, 1944, the plaintiff, Western Sand & Gravel Company, filed its complaint in the circuit court of Henry county, Illinois, against Cornwall township. Later on November 5, 1945, the plaintiff amended its complaint naming the Town of Cornwall, as the defendant.
The pleadings are very voluminous, but in substance are as follows: The complaint alleged that on September 1, 1943, the Town of Cornwall delivered to plaintiff a form for proposal, for constructing certain gravel roads in Cornwall township; that bids were to be received on September 18, 1943; and that plaintiff filed its bid with the township clerk on September 17, 1943, accompanied by a cashier's check for $7,000. The purpose of the cashier's check was stated in the proposal as follows:
"If this proposal is accepted and the undersigned shall fail to execute a contract and contract bond, as required herein, it is hereby agreed that the amount of the cashier's check or bank draft shall become the property of the Township and shall be considered as payment of damages due to repay any other causes suffered by the Township because of the failure to execute said contract and the contract bond, otherwise cashier's check or bank draft or bidders bond substitute in lieu thereof shall be returned to the undersigned."
The complaint further alleges that the plaintiff was the low bidder and was awarded the contract; that on November 2, 1943, plaintiff, "in accordance with its said proposal as required and modified by said resolution of defendants Town Board, adopted October 28, 1943," executed a contract and submitted performance bonds and presented them to defendant within fifteen days after notice of the award to it of the contract, and that defendant refused to execute the contract and cashed the said check of $7,000, returning, however, to plaintiff the sum of $955, but refusing to return to plaintiff the balance of $6,045. Copies of the proposal, instructions to bidders, bids, bonds, contract, and resolution were attached to the complaint as exhibits and made a part of the complaint.
The defendant answered, denied that it, the Town of Cornwall, had done any of the things alleged to have been done by it, and stated that the highway commissioner had given notice to bidders, had received bids (the plaintiff's bid being the lowest), had awarded the contract to plaintiff, had received plaintiff's check, and when plaintiff failed to present the contract and bond to him within fifteen days after notice of award, had declared a forfeiture of ten per cent of the bid.
The theory of the complaint was that the plaintiff and the defendant had entered into a valid contract relation by calling for bids and receiving them by the defendant, and that although the plaintiff had done everything required of it by the proposal, the defendant had refused to perform its part of the transaction by executing the contract submitted by plaintiff, and approving its bond, but instead, cashed plaintiff's check and kept the proceeds.
The case was tried upon the original pleadings and at the conclusion thereof, the plaintiff filed two additional counts. One against the defendant, Town of Cornwall, in effect, "a count for money had and received," merely reciting that the defendant had become possessed of money belonging to the plaintiff, and should be required to pay the same to the plaintiff. The other count was against Charles Sears, individually, Charles Sears, as the treasurer of the Town of Cornwall, and Charles Sears, as treasurer of the road and bridge fund of Cornwall township. The theory of this count is that the check in question was made payable to the treasurer of Cornwall township and in one of his capacities as treasurer or individually, he had cashed the check, and still retains the same.
On September 18, 1943, sealed bids were received for the improvement of forty miles of road in Cornwall township. Plaintiff had received a form of proposal and submitted a bid for the project. On September 18th, the bids were opened and the plaintiff was found to be the low bidder. It was publicly announced by the highway commissioner at that time. On October 3, 1943, the County Superintendent of Highways of Henry county prepared and mailed a notice of the award of the contract and the necessary contract and contract bond to the highway commissioner of said township. On October 4th, these documents were mailed to the plaintiff by registered mail and a return receipt returned to the commissioner of highways of said township.
Shortly after the bids were received, it was found that the plaintiff's bid was about sixty cents lower, per yard of gravel than the next lowest bidder. It was questioned whether this was a mistake on the part of the plaintiff, or whether he could furnish the gravel for that price. The Town Board of Cornwall township passed a resolution recommending to the commissioner of highways that he enter into a contract with the plaintiff for an additional twenty-five cents per yard for this gravel. There were several communications back and forth between the highway commissioner, and the gravel company relative to the contract. The main contention seemed to have been that before the commissioner would enter into the contract with the plaintiff, for the extra twenty-five cents per yard for the gravel, the plaintiff must start immediately doing the work. This never was done.
The plaintiff contends that they complied fully with the contract by presenting a bond and a contract within fifteen days after they were notified that they had received the contract. The evidence does not support this contention. After the plaintiff had failed to sign the contract, as provided in his original bid, the check in question was cashed and placed in the road and bridge fund of the township.
William Sleaford, the former highway commissioner of Cornwall township, was called by the plaintiff as an adverse witness. The defendant objected to this, as he was not a party to the suit, but the court heard the evidence subject to the objection, and during his examination in regard to the $7,000 check in question, he stated that the check was delivered at the same time the bid of plaintiff was received, and that the check was cashed by the treasurer of Cornwall township and not much of it now remains. It was cashed December 2, 1943, and "it became part of the road and bridge fund of Cornwall Township."
Under the law the supervisor of the township is treasurer of the township funds, also of the road and bridge funds and other funds. Each fund is kept separately. Before he can pay out any money from the road and bridge fund, he must have a voucher drawn by the commissioner of highways, and countersigned by the town ...