
    The Commissioners of Highland Co. v. Henry Rhoades.
    County commissioners, having ordered a certain improvement under the-road improvement act of March 29, 1867, and the amendments thereto, on April 28,1870, appointed an engineer to contract for the construction of the work and to superintend its performance. The engineer, having advertised for sealed proposals, accepted, with the approval of the commissioners, the proposal of the lowest bidder, and awarded the contract to him, and notified him thereof. Afterward, with like approval, the engineer tendered to.the contractor a formal written contract for his signature. This contract, which contained certain stipulations not before named, the contractor refused to sign—Held: 1. The contract between the parties was complete upon the acceptance of the proposal and notice to the bidder. 2. The contractor was not bound to execute thereafter a written contract which contained stipulations not expressed or implied in the advertisement, the proposal, or in the records or files relating to the improvement. 3. There being no stipulation, so expressed or implied, that the grade or line of the improvement might be changed when, in the judgment of the engineer, a change would be proper, the contractor was justified in refusing to sign a contract containing it. 4. No time being previously named for the commencement or completion of the work, the contractor was not bound to agree to any specified dates in lieu of the reasonable time therefor, which is fixed by implication of law.
    Motion for leave to file a petition in error to reverse the-judgment of the District Court of Highland county.
    The original action was brought by the plaintiffs in error against the defendant in error, in the Court of Common Pleas of Highland county, wherein the plaintiffs recovered a judgment for $858.77, and costs. On error the District Court reversed the judgment of the Common Pleas; ■and this proceeding seeks a reversal of the judgment of reversal.
    On the 28th of April, 1870, the commissioners of Highland county, acting under the road-improvement law of March 29, 1867, and the amendments thereof (S. & S. 761 jet seq), made an order for the improvement of the road “ leading from the Clinton county line, near Lynchburg, Highland county, Ohio, to and through Dodsonville, to a point near McCarty’s school-house, in said county,” and at the same time appointed Henry L. Dickey, engineer, to superintend the performance and completion of said work.
    On the 16th of March, 1871, the said engineer gave notice, in the Highland Weekly News, a newspaper published in said county, “ that sealed proposals would be received at the auditor’s office, in Hillsboro, Highland county, until noon of Thursday, March 30, 1871, for the improvement of said road according to the profiles and specifications on file at said auditor’s office, which notice was as follows:
    “{ Turnpike Letting.—Sealed proposals will be received at the auditor’s office, Hillsboro, Highland county, Ohio, until noon of Thursday, March 30,1871, for the improvement of the road from the Clinton county line, at Lynch-burg, to McCarty’s school house, where it intersects the Danville and Fayetteville road, being six miles and seventy rods. The bridges over Turtle creek and Dodson creek will be let separately. Profiles and specifications, showing the character of the work, can be seen at the auditor’s •office. Bids must be made in accordance with the forms adopted by the commissioners, and must state separately the price per rod, graveling and macadamizing. Blanks can be had at the auditor’s office or of the engineer. Bond and security will be required of the contractors for the performance of their contract. Bids will be received 'by the section or as a whole, and the right reserved to reject any -or all bids, or to retain the same, and announce the awards within five days from said March 30th.
    “ [Signed,] H. L. Dickey, Engineer.
    
    “ March 9,1871.”
    
      On the 29th day of March, 1871, the said Henry Rhoades, in pursuance of said notice, filed in the said auditor’s office the following proposals, to wit:
    “ To the Honorable the Board of County Commissioners of Highland county, Ohio:
    
    
      “ The undersigned proposes to complete the grading and graveling, or macadamizing, including the required drainage, on sections one, two, three, four, five, and six of the Lynchburg, Dodsonville, and McCarty’s school house road improvement, for the sum of $18.61 per lineal rod. Also, to build the culverts and masonry on said sections, furnishing all the materials for the sum of $3.00 per perch of twenty-five cubic feet.
    “ Also, to build the superstructures of the bridges on the said sections for the sum of $6.00 per lineal foot.
    “ The above work to be built according to the plans and-specifications on file in the office of the auditor of said county.
    “ Dated this 29th day of March, 1871.
    (Signed) “Henry Rhoades.”
    In the afternoon of the said 30th day of March, 1871, the various proposals for the construction of said improvement were opened by said engineer in the presence of said commissioners, and the said defendant, Henry Rhoades, being deemed thei lowest and best bidder, the proposal made by him, as aforesaid, was accepted, and the contract for the improvement of said road awarded to him, of which acceptance and award he was notified, and the 7th day of April, 1871, was' agreed upon by said engineer, commissioners, and Henry Rhoades as the day upon which the said Henry Rhoades would enter into an agreement in writing with the said engineer for the performance of said work, and give the proper security therefor.
    On said 7th of April, 1871, the said engineer, with the approval of said commissioners, tendered to Rhoades a contract, which is made an exhibit and attached to the petition, and which contract contained, among others, the following clauses :
    
      “ The said Henry Rhoades hereby agrees and obligates himself to construct and complete the road improvement known as the Lynchburg and McCarty’s School-house Road Improvement, extending from the Clinton county line, at Lynchburg, to and through Dodsonville, and to a point near McCarty’s school-house, being a distance of about six miles and seventy rods, with the culverts and bridges (except the bridge over Turtle creek and the bridge over Dodson creek) thereon, and in accordance with grades as established on the profile of said road, on file in the auditor’s office of said county, and on the line of said road as marked and indicated on the ground by stakes, with such changes and modifications as in the judgment of the engineer may be proper. Where any such change is made, if the work shall be increased, the price to be paid shall be increased in the same proportion; if the work is decreased, the price to be paid shall be reduced in proportion to the decrease; and in arriving at such increase or decrease of price, the price of this contract shall be taken as the basis.
    
      “ The work on said road shall be commenced on or before the 1st day of May, 1871, and be completed on or before the 1st day of May, 1873.”
    The said engineer, with the approval of the said commissioners, demanded of Rhoades that he should execute ■said contract with bond for its fulfillment, but he refused to do so.
    Upon said refusal the engineer again gave notice of letting, and re-let the road to other parties at an advance of eight hundred and fifty-eight dollars and seventy-seven cents upon Rhoades’ bid, inclusive of the cost of re-letting, that being, at such re-letting, the lowest and best bid.
    The foregoing statement of the case is' taken substantially from the original petition.
    The questions decided by the court, which are stated in -the opinion, were saved upon the record by demurrer to the petition, and by bill of exceptions containing certain in.structions to the j ury, and requests to charge made by the •defendant, and refused by the court.
    
      Henry M. Huggins, for the motion, claimed :
    1. That the engineer had no power to make changes in the road as ordered. His power is limited by the terms of the order; that the power as to changes given him by the ■contract could only be exercised, therefore, as to such •changes as were not changes in the road as ordered. He Rad no power to make any change which made a different road from the one “ as ordered.” The bid was made and accepted with reference to the law and order, and in pursuance thereof, they thus entered into and made a part of the contract. 2 Parsons on Contracts, 500, 5th edition.
    "Whenever the engineer had proposed any change which was not in accordance with the order or the statute, it would have been one outside of the spirit, if not the letter ■of the contract, and the defendant could have refused to make the change. If this position be correct, what follows ?' It follows that the authority given to the engineer to make changes was subordinate to the provisions of the ■statute and the terms of the order, and gave no authority to make any changes except such as could be made inside the provisions of the order, and that consequently such authority did not conflict either with the statute or the order for the improvement.
    The changes contemplated by the contract were such as were within the order, and such as might necessarily be incident to the making the road “ as ordered.”
    Now, it is submitted that the clause in the contract tendered the defendant, Rhoades, by a fair and reasonable construction, gave the engineer no power to make changes, except such as were within the order, and such as he would have had without any power inserted in the contract. If' this be true, the provision in the contract is surplusage merely, and not material. 2 Parsons on Contracts, 515. If I am correct in this conclusion, this clause in the contract tendered did not violate the terms of the contract made by the acceptance of the bid.
    
      2. That the limitation as to time inserted in the contract tendered was not a variance from the contract as made by the bid and acceptance.
    Under the contract, as made by the bid, he was bound to> begin and complete the work within a reasonable time. 2 Parsons on Contracts, 585. If the contract made by the bid and its acceptance was a contract to do the work in a reasonable time, unless the contract tendered prescribed an unreasonable time, it was no vai’ianee from the contract made.
    
      C. H. Collins, contra, claimed:
    That as there was nothing in the profile and specifications, or in the published notice, as to the power of the engineer to make changes in the road, and as there was nothing in the profile or specifications as to limitation of time, he, the defendant, in making a contract, had the same right in reference to fixing the time and other changes that the plaintiffs had, and that he could not be compelled in law to sign a contract to the terms of which he did not agree, and he further urged that the contract tendered him was not in accordance with the published notice under which he made his bid
    By the terms of the statute the power of the commissioners to make any changes ends with the appointment of the engineer; for, by the very terms of the statute, after' making such order for an improvement, or any change in same, the commissioners shall appoint a competent engineer, etc.
    The defendant finds the order made for the road, the. kind of improvement to be made, the width and extent thereof, examines the profiles and specifications, finds no provisions made for changes or modifications, finds the question of time in which the work is to be done an open question, treats the whole matter as a finality, as he had a right to do, and puts in his bid, and thereon a contract is tendered. him to execute, in which, he is placed completely in the power of the other contracting party, all of which appears on the face of the petition.
    We take the position under section 5 of the statute under which this road was let (S. & S. 676), that no change can be made in any respect whatsoever after the acceptance of a bid to do the work, and ask the attention of the court to the construction of the statute.
    That in the contract tendered the fixing of the time to commence and to complete the work was a material variance from the original contract; that the engineer had no right to fix a time in the contract tendered any more than the defendant; and that the contract being silent, a reasonable time to be determined, in view of all the circumstances of the case, would have been the time the law would have fixed. Atwood v. Clark, 2 Greenleaf, 249; 3 Sumner (17. S.) (1st Circuit) 530.
    No man is to be held to a contract altered without bis consent. 2 Parsons on Notes and Bills, 561.
   McIlvaine, J.

The disposition of this case turns upon the question, whether the defendant was placed in default by his refusal to execute the written contract tendered to him for his signature on the 7th of April, 1871. There is no pretense that he refused to give reasonable security for the proper performance of his contract, independent of his refusal to sign the contract tendered to him.

The only provision of the statute bearing upon this question is contained in section 5 of the amendatory act of May 9,1868 (65 Ohio L. 178), which is as follows: “After making such order for an improvement, or for any change in the samé, the commissioners shall appoint a competent engineer to superintend the performance and completion of said work, who shall, with the approval of the county commissioners, make a contract for the performance of the work; and the contractor may at once enter upon the performance of said work under the superintendence of the engineer ap~ pointed as aforesaid; provided, that said improvement shall be' let in sections of not less than one-half mile to the lowest and best bidder, who shall give such reasonable security for the proper performance of his contract within the time and manner described, as the county commissioners may deem expedient.”

Conceding that this statute requires a formal written contract to be executed between the engineer and the successful bidder, after the acceptance of his bid (which I think is exceedingly doubtful), it is perfectly certain that the stipulations and conditions of such formal instrument must conform substantially to the terms of the advertisement for bids, the proposal of the bidder, its acceptance, and such records and files relating to the improvement as constituted the evidence of the contract at the time it was consummated by the acceptance of the bid. The only purpose for which such formal instrument could have been intended was the preservation, in a succinct foi’m, of the evidence of the contract already made and entered into. Neither pax'ty could insist upon the introduction of stipulations or conditions not named or implied in their former negotiations.

After providing that the defendant should pex’form the work “in aceordaxxce with grades as established on the profile of said road, on file in the auditor’s office of said ■couixty, and on the line of said road as marked and indicated on the ground by stakes,” the following stipulations, which had not been named dui’ing the negotiations of the parties, or upon the x’eeord or files relating to the improvemexxt, were inserted in the contract which the defendant refused to sign, to wit:

“ With such changes and modifications as in the judgment of the engineer may be proper. Where any such change is made, if the work shall be incx'eased, the price to be paid shall be incx-eased in the same px’opox’tion; if the work is decx’eased, the pxice to be paid shall be reduced in proportion to the decrease; and in arriving at such increase or decrease of price, the price of this contx’act shall be taken as the basis.

The work on said road shall be commenced on or before the 1st day of May, 1871, and be completed on or before the 1st day of May, 1878.”

We think the defendant was justified in refusing to sign a writing, whereby these stipulations, or either of them, would have been injected into his contract.

1. We have not discovered in the statute any authority conferred upon the engineer to change the line or grade of .the improvement; but if, by implication arising thereon, it be otherwise, still the defendant might well have refused to give him a carte blanche under the contract to make them whenever in Ms judgment they might be proper. "There is a vast difference between a power to make reasonable and necessary changes and a power to make them when, in the judgment of a particular person, they may be deemed proper. The defendant’s contract was for a work of a given length and of a known grade, at a certain price per rod. It was his right to adhere to the terms of Ms contract, unless modified by force of the statute, in view of which it was made.

2. By the terms of the contract, consummated by the .acceptance, by the engineer and the commissioners of the defendant’s proposal, no date was fixed for the commencement or completion of the work. This omission was supplied, however, by an implication of law. The implication was that the work should be commenced and completed within a reasonable time. Negotiations had ended. It is not enough to say, in answer to his objection, that the dates named in the rejected writing were reasonable. It ■was not, and could not at that time have been known whether they were so or not. When a contract for work, .such as this, is to be performed within a.reasonable time, circumstances which the unknown future may develop, as well as circumstances known to the parties at the time, become elements in determining its expiration. The proposed change in the contract, in this respect, was material, and the defendant was justified in rejecting it.

Judgment affirmed.

Welch, C.J., White, Rex, and Gilmore, J.J., concurred.  