excavation was reasonably worth as extra work, was declared against the policy of the law.' Under a contract by a city which provided that the architect might direct deviations and the increased cost be added to the agreed price it was held that the city was not bound by the architect's promise and order for piling, necessary for securing a firm foundation, because it had not been advertised and mentioned in the specifications for the work and proposals received for its construction." The contract as drawn and executed must not include extra work, nor contain other or different classifications than those competed under and included in the proposals.' The prices must not be changed when the contract is given from those named in the bid, nor provisions made for extra work, as an allowance of 15 per cent. additional to the actual cost, when no such provision has been put in the notice for proposals. If such acts are committed, they may render the contract void and leave the contractor without any recovery for the work he has done. "For," says the court, "though this principle of the law may work hardships, yet it is better that an indi vidual should occasionally suffer from the mistakes of public officers or agents than to adopt a rule which by improper combinations or collusions might be turned to the detriment or injury of the public." It does not matter that the bid is the lowest, or that it is less than the amount appropriated specially for the work; the difference between the sum bid and the amount appropriated cannot be recovered, as such additional contract is not binding on the state, because not let in the manner provided by law. However, it has been held in New York State that when the appropriation for a public work is limited, and a contract is made for it. according to a plan to be adopted, and with a proviso that the cost shall be limited to a certain sum, if the price agreed upon is within that amount it is a valid contract, even though it reserves authority to make such changes. of detail as may be necessary, and authorizes the engineer directing the work to determine the price of the extra work required." Any property-owner or taxpayer may maintain a suit to enjoin the prosecution of work under an illegal contract or the payment of the prices specified, even though it be conceded that the suit is brought in lieu of a suit by an unsuccessful bidder." Extras cannot be ordered, for if that were allowed the statute would be no safeguard to the public interests. The contract might include but a part of the work, while a larger and more profit-paying part could be ordered as extras.' Thus under a contract awarded by a village to the lowest bidder to do flagging, paving, and curbing, the village having undertaken to do the necessary grading and to furnish the sand and gravel, it was held that the contractor could not recover for the sand and gravel he had furnished in obedience to a resolution by the trustees of the village requiring him to do so, as the resolution was in violation of the city charter, which required that sealed proposals for work should be advertised for and the contract awarded to the lowest bidder." It has been held that where a contract was let for the laying of Nicholson pavement (patented) and ordinary stone cross-walks, after proposals for Nicholson pavement only the assessment for the work could be vacated. Yet in another case it was held that where a contractor did work necessary to carry out his contract, either as extra work or to meet exigencies unforeseen when the contract was made, he was entitled to recover therefor on a quantum meruit, though the city charter provide that if any work shall involve an expenditure exceeding seventy-five dollars it shall be done by contract let to the lowest bidder.* The contract must be confined to the work and materials contained in the proposals. Nothing can be added or omitted without due notice having been given, as the object of the law is to secure competition and the benefits to be derived from it. The contract must be the same that was advertised.' A change by public officers of a foot in the depth to be dug for curbing, and permission to the contractor to appropriate stone that was by the specifications to be used for filling in a certain place, he furnishing earth which could be used on the street, are unauthorized and void. The proposals made by the contractor and the specifications form the only basis of a contract, and no contract can be made under any other terms. If the contractor execute work not in strict conformity to such specifications and proposals, he is entitled to no compensation for his work, for there is no contract, and none can be implied. A recent case has even decided that where, after letting the contract for grading a street according to plans and estimates, an ordinance was passed changing the grade, but no new plan or contract was made, though the grading was done in accordance with the last established grade, an assessment for such work was invalid.' A change in the lines or levels which lessens the amount and the cost of the work may render the contract inoperative, and invalidates the assessment. A board of public works has no authority to exact from the contractor a bond that the pavement will last for five years where it is not required by the resolution of intention. If, as is sometimes the case, the charter of the city provides that repairs shall be paid for by the city, and improvements by the propertyowners benefited, the same to be let to lowest bidder; an ordinance, advertisement, and letting of a contract for the construction and maintenance (or repair) of a street together and to be paid for by either party alone, is void, being in violation of the charter.** 158. Right to Make Changes and Alterations Reserved.-Whether public officers can reserve the right to make changes and alterations in the specifications by giving notice of such reservation in the advertisement for proposals may well be doubted. Certainly not if the work were for a lump sum, nor under any circumstances which might foster favoritism or lessen the obligations or work which the contractor had assumed. Labor and materials paid for by the unit of measurements must be subject to such changes, and it can work no hardships to the public nor to the contractor. Even when it is provided in the contract that the contractor shall make any alterations in the form, dimensions, or materials when directed by the board of public works; that the work shall be prosecuted in such order and at such places as the board of public works may direct; that the excavations be made to depths. shown on profile and plans on file, of such widths and in such directions as may be necessary; that any work required to be done that is not specified shall be done in accordance with the directions of such board, it is held that the board was not authorized to order any material change in the plan as to location or course of a sewer (which was being done at a price per linear foot), without the approval of the city council. If in the construction of works it is anticipated that difficulties, requiring changes, will be encountered, or that the work may become much more burdensome, as by the meeting of quicksand, hard-pan, or rock excavation, which would largely increase the cost, and the extent of which it may be impossible to ascertain in advance; such contingencies should be mentioned in preparing the specifications and contracts, and their payment be provided for, so that they may be taken into account by bidders in making their proposals by the cubic yard, linear foot, unit weight, etc.* 159. Instances Where Contract has been Sustained. The fact that plans for street improvement were in the alternative is immaterial in the absence of proof that any one was misled or prevented from bidding, or that the cost of the work done was enhanced thereby." Such contracts are divisible. When a contract has been let for work, a part of which has been legally authorized and contracted for, and another part of which is illegal and unauthorized, the contractor may recover for that which was done in pursuance of the charter and according to law.' When a contract is in violation of the charter of a city as to a part of the work, it will render the assessment for the work so far void, as the work done was contrary to the provisions of the charter, and will not furnish a ground for vacating the whole assessment. It may be reduced by the amount which it may have been increased by reason of fraud or substantial error or irregularity.' 160. Works Whose Cost Exceeds a Certain Amount Within the Statute, Charter, or Ordinance.-The question often comes up as to whether the statute or charter requires all work, however insignificant, to be included in the specifications and contract, and if it includes alterations and additions. and extras from whatever cause. The delay and annoyance resulting from such a requirement would be expensive and aggravating beyond measure if it were necessary to advertise and wait for proposals for every small extra item or minor change required on or in works. This trouble is usually obviated by a clause in the act or charter that only such contracts for materials and work whose cost is more than a specified sum, e. g., $500, shall be advertised and let to the lowest bidder.' The addition of such a clause, if the sum is made large, enables public officers to let work in parts and to evade the law, thus defeating its very object. Courts are alive to this fact, and seek to require the most scrupulous care and strictest honesty of all parties. Evidence of dishonest praclices will be construed against the contractor and in favor of the public. When a certain amount is specified as the limiting cost of work that may be let without advertising for proposals, it must not be exceeded. Under an act requiring any expenditure of more than $2500, to be let to the lowest bidder after advertising for bids," an informal contract for work and materials, including eight bronze statues, to cost more than $2500, without advertising for bids, was declared void; and it was held that they could not be included under an advertisement and specification "for the iron inner dome and other ornamental ironwork," nor did verbal explanations made at the time the proposal was made remedy the omission of them." 66 When proposals have been made to furnish labor and materials for a structure according to a schedule of prices for specific qualities, and a contract was subsequently entered into, to erect the structure for a certain sum of money, "being the aggregate cost at the prices specified in the said proposals," it was held that the statement of the cost was intended only as an 1 Texas Transp. Co. v. Boyd. 2 S. W. Rep. 364 [1886]; see also In re McCormick, 60 Barb. 128 [1870], not fatal to the assess ment. 2 Merriam in Petition, 84 N. Y. 596 [1881]. 3 In re Anderson, 17 N. E. Rep. 209 (N. Y. 1888); In re McCormack, 60 Barb. 128 [1870]. It may be doubted if $500 is an appropriate sum. See Littler v. Jayne (Ill.), 16 N. E. Rep. 374 [1888], where the act was amended, making the sum $2500 instead of $500, which seems an opposite extreme. Littler v. Jayne (Ill.), 16 N. E. Rep 374 [1888]. estimate, and that the intention was to pay the prices named for such materials and labor as were actually furnished.' 161. What Work Comes Within the Statute.-A charter of a city that requires that "all contracts for doing work and furnishing materials for an improvement shall be given to the lowest bidder" was held not to apply to a contract to furnish hose to the fire department; but a contrary construction was put upon the same charter the following year, when it was held that a charter that required that all contracts should be awarded to the lowest bidder. did include a contract to purchase fire-hose, and that an award of a contract contrary to the charter, and including additional qualifications not included. in the estimate and specifications advertised, was void. The work of cleaning streets of a city, and of supplying it with water, have been held to come within the prohibitions of the charter against making contracts for work without previously advertising for proposals. A statute which requires all contracts for the improvement of roads to be let to lowest bidder has been held to include contracts for repairs to permanent bridges and culverts," and cells of a jail have been held to be a part of a public building." The removal of garbarge at $800 per month was held not to be within a statute requiring "that work necessary to be done to complete a particular job and involving more than $1000" should be let to the lowest bidder, as the work in question was not done to complete a particular job and did not necessarily involve an expenditure of $1000 or more. If it be provided that no contract or purchase involving an expenditure of more than $1000 shall be made without first advertising for bids, an exchange, without advertising for bids, of pumping-engines incurring an expenditure of more than $10,000 will not bind the city, even though it is made by order of the city council authorizing the board to make such an exchange, such order being held not to abrogate the terms of the ordinance. So under a contract for the construction of a public building a substitution of another kind of work which increases the amount to be paid for the building by more than $1000 cannot be made." The cost of the materials substituted, it seems, is not to be added to the cost of furnishings whose place they take." Verbal explanations that certain work will be required and certain materials must be furnished are not sufficient to include items not mentioned in the advertisement or specifications, though they be a part of, or properly belong to, the structure advertised. They cannot be included if their cost exceed the statutory limit." Ertle v. Leary (Cal.), 46 Pac. Rep. 1. 8 Worthington v. Boston (Mass.), 41 Fed. Rep. 23 [1890] Brady v. New York, 55 N. Y. Super. Ct. 45; and see Sadler v. Eureka Co. Comm'rs.. 15 Nev. 39; and Swift v. Mayor, 83 N. Y. 528. 10 Brady v. New York, 112 N. Y. 480. Littler v. Jayne (Ill.), 16 N. E. Rep. 374 [1888]. |