
    Hugh Murphy, appellant, v. City of Plattsmouth, appellee.
    Filed January 5, 1907.
    No. 14,861.
    1. Cities: Improvements: Estimate op Cost. The statute which requires an estimate of the cost of a public improvement to be made and submitted to the city council by the city engineer before a contract for such improvement is let, is mandatory, and a contract made without complying with such requirement is void.
    2. -: Contracts: Estimate oe Cost. Where such statute further provides that such estimate shall be published with the advertisement for bids for making such improvement, and that no contract shall be let for a price exceeding such estimate, the inhibition against letting a contract at a price in excess of the estimate cannot be evaded by raising the estimate after the bids have been made and opened.
    3. -: -:-Letting to Lowest Bidder. Any material departure in a contract of that character from the terms and conditions upon which the bidding was had, is an evasion of a statute requiring a contract to be let to the lowest responsible .bidder. ,
    4. -: -: Assignment. Where a contract with a city for a public improvement expressly provides that it shall not be assigned, such provision is enforceable, and an assignee thereof cannot recover the money due thereunder, or any part thereof.
    Appeal from tbe district court for Cass county: Paul Jessen. Judge.
    
      Reversed with directions.
    
    
      Matthew Gering and E. 0.. Strode, for appellant.
    
      E. D. Trams and Jesse L. Root, contra.
    
   Albert, C.

Suit was brought by Hugh Murpby against the city of Plattsmouth to recover a small balance due on a written contract alleged to have been made between the defendant city and one Fanning for the paving of certain streets in that city. The plaintiff claims this balance as Fanning’s assignee. On a former appeal to this court a judgment in favor of the plaintiff was reversed on the ground that the contract was made without an estimate of the cost of tin1 improvement having been made and submitted to the city council by the city engineer, as required by section 20, p. 197, laws 1879, and was therefore void. City of Plattsmouth v. Murphy, 74 Neb. 749. After the cause was remanded another trial was had. At the close of the testimony the court directed a verdict in favor of the plaintiff for $381.42, and gave judgment accordingly. Both parties appeal.

At the last trial the plaintiff sought to avoid the effect, of the rule applied by this court on the former appeal by evidence tending to show that such estimate was made and submitted to the council by the city engineer, and published with the advertisement for bids. But from the evidence introduced for that purpose it also appears that the estimate was raised by the engineer after the bids were opened, in order to avoid that provision of the section of the statute above referred to, which prohibits the city council from entering into a contract for such improvements for a price exceeding the estimate made and submitted by the engineer, and that there was a material departure in the contract from the terms and conditions upon which the bids were submitted. It is too plain to admit of serious dispute that the city council could not thus evade the mandatory provisions of the statute. As was said in Inge v. Board of Public Works, 135 Ala. 187, 93 Am. St. Rep. 20: “Any material departure in the contract awarded from the terms and conditions upon which the bidding is had, renders the contract, in a sense, a private one. . To permit such in the awarding of public contracts by public officers would be to open wide the door for favoritism, and defeat the thing which the law intended to safeguard in requiring the contracts to be let upon bids made on advertised specifications. It is unimportant whether the additional stipulation contained in’ the contract awarded to one, who is not the lowest responsible bidder, be in itself an advantage to the city or not, if it constitutes a material change, and, therefore, a departure from the basis of the bidding, and becomes an element or consideration in the determination of who is the lowest and best bidder, it will invalidate the contract entered into.” See, also, Chippewa Bridge Co. v. City of Durand, 122 Wis. 85; Diamond v. City of Mankato, 89 Minn. 48.

The principle involved does not differ from that involved in Fairbanks, Morse & Co. v. City of North Bend, 68 Neb. 560, where it was held: “A city or village can enter into a valid contract for the erection or construction of any wort authorized by section 69, article I, chapter 14, Compiled Statutes, only after it has advertised for bids as required by subdivision XV of such section, and then only with some person in accordance with a bid tendered by him in response to such advertisement.” It seems to us, in view of the change made in the estimate after the bids were opened, and the departure from the terms upon which the bids were submitted, the plaintiff stands in no better position than if no estimate had been made or submitted. The effect of such omission is discussed at length in the former opinion, where the contract on that account was held void. It follows, therefore, that the judgment of the district court is erroneous.

There is another reason why the judgment must be reversed. The contract in express terms provides that “the second party (Fanning) shall not assign or transfer this contract or sublet any of the work embraced in it.” The terms and conditions of a contract have the force of law as to those who are parties thereto. Lowry v. Inman, 46 N. Y. 129. In City of Omaha v. Standard Oil Co., 55 Neb. 337, the plaintiff claimed as assignee under a contract containing a stipulation of this character, and this court held that the contract was nonassignable. Counsel there advanced the proposition that the stipulation was merely directed against the Assignment of the obligation resting upon the assignor by virtue of the contract, and was not intended to prevent an assignment of the money to be earned thereunder. But this court refused to adopt that view, and disposed of the matter in these words: “But it is needless for us to speculate on the motives for the city’s action. It is enough for us to know — whatever its reasons may' have been — that it has, in plain language, stipulated against an assignment of the contract. That stipulation is valid and must be enforced. To hold that it covers some, but not all, of the rights and obligations arising out of the contract would be, it seems to us, an inexcusable perversion of its terms.”

We can conceive of no theory upon which the plaintiff is entitled to recover on the cause of action alleged in his petition, and it is recommended that the judgment of the district court be reversed and the cause remanded, with directions to dismiss the action.

Jackson, C., concurs.

Duffie, C., not sitting.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded, with directions to dismiss the action.

■ Reversed.  