
    WILLIAM H. ADAMS, Appellant, v. JOHN IVES and others, Respondents.
    
      Contract for pvMia work—Sweties—Substitution, of other than those mentioned in bid, after its acceptance—when not allowed.
    
    Commissioners appointed to lay out, etc., a public highway, published notice that proposals for doing the work would be received, and that each estimate must be accompanied by the consent of two sureties, who should be satisfactory to the commissioners, that they would become bound for the faithful performance of the work. Plaintiff put in a bid, and named, as sureties, A. and B. This bid was accepted by the commissioners. The plaintiff then applied to the commissioners to substitute, in place of the surety “B.,” one “D.,” which, after making some inquiry as to “ D.,” the commissioners refused to consent to. After notice to plaintiff to execute the contract and bond with the sureties named in the bid, and that otherwise his bid would be considered as withdrawn, and after plaintiff’s tendering “D.” as surety in place of B., he not being able to obtain B’s consent, the commissioners entered into a contract with other parties; whereupon the plaintiff commenced an action in equity to restrain the execution of such contract and any payment thereunder. Held, that the suit could not be maintained; that the doctrine that under a contract to take good security, or a good indorsed note, the obligee is bound to accept that which is in fact correct within the meaning of the contract, and cannot reject a tender of performance from mere willfulness or whim, had no application to the case, the only contract here being to accept two specified parties, and not to take any responsible sureties.
    Appeal from a judgment dismissing the complaint.
    The facts are fully stated in the opinion.
    
      James B. Adams, for the appellant.
    
      D. P. Barnard, for the respondents.
   Talcott, J.:

The defendants, Ives, Wykoff, Yan Sickeen and Palmer, were appointed by the Supreme Court, commissioners to lay out, open and grade Atlantic averiue, in the town of New Lots, Kings county, under an act of the legislature, passed in 1869, which act- was amended in 1870. Under these acts, the commissioners, as such, were to enter upon the lands taken for the avenue, and cause the same to be properly regulated, graded, graveled, curbed, etc., in such manner and on such plans, as, in their judgment, should be necessary. The act contains no directions as to any manner in which they shall contract for the doing of the work, or for any advertisement for proposals. The commissioners, however, did, in November, 1870, publish a notice, to the effect that, for the space of two weeks, proposals would be received for the regulating, grading, curbing, guttering and preparing the avenue, according to certain plans and specifications to he seen at their office. The specifications referred to, contained the following provisions, to wit: “ Each estimate must be accompanied by the consent, in writing, of two persons, with their respective place of business or residence, who shall be satisfactory to the commissioners, so that, should the contract be awarded to the persons making the bid, they will, on its being so awarded, become bound as sureties, each and severally, in the sum of $10,000, to insure the faithful performance - of the contract.”

The plaintiff put in a bid, which, on the face of it, purported to be a bid for furnishing the materials for the work in question, and named, as his securities, “ William Miles and Samuel Gr. Adams, both real estate owners in the town of New Lots.”

• The bid of the plaintiff was accepted by the commissioners, but he failed to procure the assent of Mr. Miles to become one of his sureties. He applied to the commissioners for leave to substitute, in place of Mr. Miles, as one of his sureties, one Charles Devlin, of the city of Hew York. The commissioners, after having made some investigation regarding the character and responsibility of Devlin, refused to consent to the change. The plaintiff then gave notice that he was ready to execute the contract, and asked them to specify a time when it would be convenient for him to be present with his sureties. The commissioners thereupon notified. the plaintiff that the contract was prepared and ready for execution at their office, and notified him to call at the office of the commissioners with the sureties proposed by you, viz.: William Miles and Samuel G-. Adams,, and sign the contract and bond, on or before the 15th of March, 1871; otherwise, the commissioners will consider you as having withdrawn and abandoned your bid, and the commissioners will award the contract to some other party.”

The plaintiff, being unable to procure Mr. Miles to become one of his sureties, tendered Mr. Devlin, as such surety, in place of Miles; and thereupon, after the time specified in their notification to the plaintiff had expired, the commissioners awarded the contract to the defendants, Moore and Sturges. The plaintiff thereupon commenced this suit in equity, to restrain the commissioners from awarding the contract to any other person, and from collecting any money from the town of Hew Lots; to pay for doing the work, and to restrain the supervisor of the town of Hew Lots from issuing the bonds of the town of Hew Lots to pay for the work, and to restrain Moore and Sturges from doing the work under the contract awarded to them. On the trial, the complaint was dismissed, upon the ground that the commissioners were not legally bound to accept of Mr. Devlin as a surety for the performance of the contract by the plaintiff, even though Devlin was sufficiently responsible. Without conceding that a suit in equity can be maintained in such a case, we think that the decision at the Special Term was clearly right, upon the ground on which it was. then placed. The authorities relied upon by the plaintiff’s counsel, to show that, where there is a contract to take “ good security,” or a good indorsed note,” or when words creating a similar obligation are used in a contract, the obligee is bound' to accept that which, in fact, comes within the meaning of the contract, and cannot reject a tender of performance from mere willfulness or whim, have no application to this case. This is not a question of the meaning of the terms of a contract, or what is a fair and reasonable compliance with it. The only contract made by the commissioners with the plaintiff, was to accept, as sureties, two certain, specified parties, and they made no contract to accept any responsible sureties who might be offered. The plaintiff took upon himself the risk of being able to procure the sureties specified by him, and there was no obligation, whatever, resting upon the commissioners to give the contract to the plaintiff, except that created by the express terms of the bid and acceptance. As the commissioners were under no legal obligation to the plaintiff, of course he cannot maintain an action against them, upon the ground that they were actuated by improper motives, in refusing to do that which they were not bound to do by their contract.

The judgment must be affirmed, with costs of the appeal.

Present — Baenaed, P. J., Tappen and Taloott, JJ.

Judgment affirmed, with costs. 
      
       Sess. Laws of 1869, p. 404.
     
      
      
         Sess. Laws of 1870, vol. 2, p. 1434.
     