
    The Pfaff Construction Co. v. Leonard et al.
    (Decided April 20, 1931.)
    
      
      Messrs. Nicola & Horn, for plaintiff in error.
    
      Messrs. White & Brewer, for defendants in error.
   Lemebt, J.

In the court of common pleas of Cuyahoga county, the Pfaff Construction Company and the village of Mayfield Heights were the plaintiffs. The village dismissed its action in the midst of the trial. The defendant village officials filed no answers individually and made no claim, so the parties in the trial below were the plaintiff Pfaff Construction Company against the defendants Margaret Leonard, the Continental Casualty Company and the Angelo Marra Company.

In the court below objection was made by counsel for the defendants to the introduction of any evidence on behalf of the plaintiff on the ground that the petition did not state a cause of action. The objection was sustained by the trial court, and the jury was directed by the court to return a verdict for the defendants. A motion for a new trial was made in due time by the Pfaff Construction Company, which motion was overruled. Said company is prosecuting error in this court, and the parties will therefore be denominated plaintiff and defendants as they stood in the lower court.

The facts set forth in the petition, in short, are as follows: The Pfaff Construction Company, the plaintiff, was awarded two contracts on the 15th of August, 1928, by the council of the village of May-field Heights, Ohio, for the installation of a sewer and putting in of water connections in- said village. The contracts and bond were drawn by the engineer of .the village, approved by the solicitor, and signed by the plaintiff. The bond was also signed by an approved bonding company, and the contract was about to be signed by the mayor and the clerk when a temporary injunction was obtained against the plaintiff, the village, and all of its officials. A motion was filed to dissolve the temporary injunction, the court of common pleas advanced the cause for immediate trial, it was heard upon its merits, and being afterwards appealed to the Court of Appeals of Cuyahoga county, Ohio, that court decided the cause in favor of plaintiff; said injunction being dissolved.

The record discloses that two bonds were given, one in the amount of $1,500 and the other one in the amount of $2,500.

The nature of plaintiff’s claim in the instant action is for damages because of the issuance of the injunction. The question raised by the record before us is whether or not the facts stated in plaintiff’s petition set forth a cause of action against the defendants. We observe among other averments made in the petition the following:

“By virtue of said restraining order this plaintiff and said Village and its officers were prevented from entering into said contract and this plaintiff was prevented from performing any of the work awarded to it by said Village of Mayfield Heights, Ohio, until the trial of said cause.”

It is therefore apparent that at the time of the granting of the restraining order the plaintiff herein had no contract with the municipality. The fact that an award had been made gave the plaintiff no enforceable or vested rights against the municipality. This proposition is supported by abundant authority in Ohio.

While the Pfaff Construction Company was made a defendant in the injunction proceeding, the action might well have been instituted against the municipal authorities alone, restraining them from executing or entering into a contract in violation of the statute.

The village of Mayfield Heights was one of the plaintiffs in the case now before this court, but, as is shown by the bill of exceptions, the village dismissed the action so far as it was concerned and withdrew from the case. By such proceeding there is removed from the case the consideration of any question with reference to attorney fees alleged to have been expended by the village.

It is contended on the part of defendants in error that the plaintiff herein had no enforceable rights against the municipal authorities until a written contract had been executed between the contractor and the municipality, and consequently was deprived of no right by reason of the granting of the temporary restraining order.

This contention we believe is well taken under authority of State, ex rel., v. Board of Public Service, 81 Ohio St., 218, 90 N. E., 389. Also another case well in point is Water Commissioners of Jersey City v. Brown, 32 N. J. Law, 504, which was an action at law, and it was sought to recover damages, and the plaintiff’s claim was that he was entitled to damages by reason of the refusal of the city to enter into a contract with him after having accepted his bid. That raised therefore the very question at issue here, to wit, Did the mere acceptance of the bid give the right of action to the relator against the city, or, in other words, did that act of the city vest any right in the relator?

The foregoing authority effectually disposes of any contention by the plaintiff that the contractor and village officials were prevented from performing any work until the trial of said cause, or that it was in any way injured or damaged by reason of the restraining order preventing the village officials from entering into a contract. As heretofore stated, the action might well have been one against the village officials alone, to restrain them from entering into or making the contract, and ignoring the Pfaff Construction Company entirely as a party to the action.

It seems to be a logical conclusion that the contractor, not having any vested or legal rights under any contract, would not be damaged as set forth in its petition.

The foregoing proposition is based upon the fact that a contract was made; that being much stronger than the instant case wherein the petition sets forth that the said village and its officers were prevented from entering into a contract with the plaintiff, and so forth.

The powers of village officials in Ohio are fixed by statute, and as applicable to the instant case the authority vested in village councils relative to public contracts is to be found in Sections 4221 and 4222, G-eneral Code. Section 4221 provides how contracts shall be let, bids received, and so forth:

“All contracts made by the council of a village shall be executed in the name of the village and signed on behalf of the village by the mayor and clerk. When any expenditure other than the compensation of persons employed therein, exceeds five hundred dollars, such contracts shall be in writing and made with the lowest and best bidder after advertising for not less than two nor more than four consecutive weeks in a newspaper of general circulation within the village. The bids shall be opened at twelve o’clock noon on the last day for filing them, by the clerk of the village and publicly read by him.”

We quote that part of Section 4222 which provides for bids and the proceedings thereon:

“Each such bid shall contain the full name of every person or company interested in it and shall be accompanied by a sufficient bond or certified cheek on a solvent bank that, if the bid is accepted, a contract will be entered into and the performance of it properly secured.”

Taking above two sections, it will be noted that Section 4221, referring to contracts such as made in the instant case, uses the words “shall be executed,” and then turning to Section 4222 it will be noted that this section uses the following language: “If the bid is accepted, a contract will be entered into and the performance of it properly secured.” So that, taking these two sections together, we are of the opinion that in dealing with a contract such as that in the instant case, which it is claimed the village and officers were prevented from entering into, there are two essential things to be considered —one the making of the contract and the other the executing of the contract.

So now coming to consider the claimed ground of error that the court below erred in directing a verdict for the defendants, we find and hold that under the averments of the petition and the law governing the instant case the court below was right in so directing a verdict, and we further find and hold that the plaintiff had no standing in the court below, for the reason that it had no vested or legal rights which were in any way affected by the granting of the temporary injunction. It follows that we find no error in this case and the judgment is therefore affirmed.

Judgment affirmed.

Sherick and Montgomery, JJ., concur.

Judges Sherick, Lemert and Montgomery, of the Fifth Appellate District, sitting by designation in the' Eighth Appellate District.  