1. Where there is no contract, express or implied, between the
parties, usage or custom cannot make one.
2. A county and a city within its limits proposed to erect
public buildings, the portion appropriated to the uses of each to
be paid for by them respectively. They jointly offered a premium
for plans. A. furnished one, and received the promised
compensation. There was no further contract between the parties.
The city and county severally adopted a resolution selecting his
plan, subject to such modifications as might thereafter be
determined upon if his estimate as to the cost of construction
should be verified. He brought suit against them to recover five
percent of the estimated cost of the buildings.
Held:
1. That he was not entitled to recover.
2. That evidence of the value of his services in making the
estimate was properly excluded, inasmuch as he failed to show that
they had been rendered at the instance of the defendants.
The facts are stated in the opinion of the Court.
MR. JUSTICE WOODS delivered the opinion of the Court.
This was an action of assumpsit, brought by Tilley against the
County of Cook and the City of Chicago. The declaration
Page 103 U. S. 156
consists of the common counts for work and labor done, goods
sold and delivered, money lent and advanced, and upon account
stated.
The following is a copy of the account sued on, which was
appended to the declaration:
"The COUNTY OF COOK and the CITY OF CHICAGO to THOMAS TILLEY,
Dr."
"For services as architect in preparing plans, drawings,
specifications, diagrams, estimates, and details for the new
courthouse and city hall, and superintendence of erecting the same,
five percent on $2,909,629, the estimated cost of the building, the
plan being that known as 'Eureka' . . . $145,481.45"
The defendants pleaded the general issue.
By provision of the Constitution and laws of the State of
Illinois, the county affairs of Cook County are managed by a board
of commissioners of fifteen persons. Ill.Const. 1870, art. 10, sec.
7. The affairs of the city are controlled by the common council.
Private Laws of Illinois, 1863, p. 40.
The County of Cook was the owner of a block of ground in the
City of Chicago, known as the courthouse square, on which it was
proposed to erect a building to be used as a city hall and county
courthouse, in which the business of the city and county might be
conducted.
On July 10, the board of county commissioners, and on July 15,
1872, the common council, adopted, each for itself, the following
resolution:
"
Resolved that it is the sense of the joint meeting
that they recommend to the Common Council of the City of Chicago
and the Board of Commissioners of Cook County that the City of
Chicago and the County of Cook will authorize the building
committees of the several boards to offer a prize of five thousand
dollars ($5,000) for the best plan, two thousand dollars ($2,000)
for the second, and one thousand dollars ($1,000) for the third
best plan for a courthouse and city hall, to be erected jointly by
the County of Cook and the City of Chicago, upon the public square
in the City of Chicago, the said plans to be submitted to
respective boards, in conjunction with the Board of Public Works of
the City of Chicago. "
Page 103 U. S. 157
On Aug. 5, 1872, the common council of the city and the board of
county commissioners passed an order providing for a joint contract
between the city and county for the erection of a building on the
courthouse square, and on Aug. 28, 1872, the contract was executed.
It declares that it was for the public convenience that the courts
and the offices of the city "should be located at some one
convenient point and readily accessible to each other," and
provides for the erection, by the city and county, of a public
building on the courthouse square, for the use of the county and
city governments respectively, and the courts of record; that the
general exterior design of the building shall be of such uniform
character and appearance as may be agreed upon by the board of
county commissioners and the common council of the city.
The contract further provides as follows:
"3. That portion of the said building situate west of the north
and south center line of said block shall be erected by the City of
Chicago at its own expense."
"4. The City of Chicago shall occupy that portion of said block
west of the said center line for a city hall and offices incidental
to the administration of the city government, and for no other
purpose whatever, except as hereinbefore provided."
"5. Each of the parties will heat, light, and otherwise maintain
and furnish its own portion of said building."
On Nov. 25, 1872, the building committees of the common council
and the county commissioners published an advertisement calling for
designs for the proposed building.
The advertisement declared that in order to secure suitable
designs, the city and county jointly offered the following
premiums: for the best design, $5,000; for the second best, $2,000;
and for the third best, $1,000.
It provided as follows:
"Each design must have a device or motto marked on each drawing,
and be accompanied by a sealed letter giving the name of the
author, which will be opened after the final award is made only for
the purpose of ascertaining the names of the successful architects
and for the return of the unsuccessful drawings to their
authors."
"Each competitor will give the cubical contents of his building,
and an estimate of the cost of the same complete. "
Page 103 U. S. 158
Designs were submitted by a large number of architects, and the
building committees of the city council and the board of county
commissioners made a report awarding the prizes. Tilley, who had
adopted for his drawing the word "Eureka" as the device or motto to
distinguish it, was awarded the third prize, of $1,000.
On Aug. 4, the county board, and on Aug. 18, 1873, the city
council, adopted the following resolution:
"That the report of the majority of the joint committee awarding
the prizes for plans of courthouse and city hall shall be concurred
in and the award confirmed, provided that nothing herein or in said
report contained shall be construed as indicating a preference for
either of said plans as to which shall be finally adopted, from
which the said building shall be erected."
Tilley was paid the thousand dollars awarded to him as a
prize:
Afterwards, on August 25, the county commissioners, and on Oct.
10, 1873, the city council, adopted the following resolution:
"That the plan known as Eureka, or number 5 (five) in the
collection, submitted for courthouse and city hall, be and is
hereby, selected and adopted as the plan after which to build such
courthouse and city hall (the Board of Commissioners of Cook County
concurring), subject to such change and modifications as may
hereafter be determined upon by the Common Council of the City of
Chicago and the county board, provided the estimate of the
architect who presented said plan as to the cost of construction of
the building shall be verified."
Upon the trial of the case, the testimony tending to establish
the facts above recited having been given in evidence by the
plaintiff, he was sworn as a witness in his own behalf, and
testified that he was an architect of fifteen years' standing, that
he had made the design designated by the word "Eureka," and that,
after the passage by the city council and board of county
commissioners of the resolution last above mentioned, he had
verified the cost of the construction of the proposed building in
the way customary and usual with architects, which was made up at
the rate of thirty-five cents per cubic foot for
Page 103 U. S. 159
the building, and was endorsed by fourteen or fifteen
architects.
The plaintiff produced before the jury all his plans for which
the prize had been awarded him. He offered to prove their value,
the time employed and the expense incurred in the preparation of
them. The court excluded the evidence so offered.
He further offered evidence to establish that by the usage and
custom of architects, in the absence of a special contract, the
superintendence of the construction of a building belonged to the
architect whose plans were adopted. This was also excluded.
He also offered evidence to prove that by the usage and custom
of architects, where prizes for plans were offered, the plans of
the successful competitors belonged to them, and, if subsequently
adopted as the plans to build by, were always paid for in addition
to the prize itself. To this the defendants objected, and the court
sustained the objection.
He also offered evidence to establish the value of the services
rendered in verifying the cost of the proposed building according
to the "Eureka" plans, to which the defendants objected, and the
court sustained the objection.
This was all the evidence given or offered to be given in the
cause.
The plaintiff then rested his case; whereupon the court directed
the jury to find for the defendants.
The jury returned a verdict for the defendants, and judgment was
entered thereon.
To reverse this judgment this writ of error was brought.
It will be observed that no evidence was introduced or offered
to show that the plans of the plaintiff were used by the
defendants, or either of them, or that the building for which they
were used was ever erected.
It is clear that if the plaintiff has any right of action it
must arise on the resolutions adopted by the board of county
commissioners, Aug. 25, and the city council, Oct. 10, 1873. All
that had taken place before those dates was the making of a
contract between the city and the county, by which they agreed to
join in the erection of a public building in the courthouse
Page 103 U. S. 160
square, each party to build and pay for its own part of the
structure; an offer by the city and county of three prizes for the
best plans; an award of the prizes by which the third prize, of
$1,000, was given to the plaintiff in error, with the distinct
notice that
"the award should not be considered as indicating a preference
for either of said plans as to which should be finally adopted from
which the said building should be erected,"
and the payment to and the receipt by the plaintiff of the prize
awarded him.
By the payment to the plaintiff in error of the prize, the
defendants discharged every obligation due from them to him arising
out of the preparation of plans for the proposed building. Upon
that payment being made, no contract whatever, either express or
implied, existed between the plaintiff and the defendants.
If, therefore, the plaintiff had any right of action against
defendants, it must have arisen by reason of the adoption of the
resolution just mentioned, and what was done by plaintiff after its
adoption.
The resolution was the voluntary act of the city council and
county commissioners. It was not a proposition, but simply the
expression of a purpose to build their structure after the plans of
the plaintiff, subject to such changes and modifications as might
thereafter be determined upon by the common council and the county
board. The resolution was not adopted at his instance or
suggestion. Suppose that the day after its adoption the resolution
had been reconsidered and rescinded, would the defendants
nevertheless have been liable for the value of the plans and for
five percent on the estimated cost of the building for
superintendence, amounting in the aggregate to near $146,000?
Suppose a private person should announce his purpose to build a
house after a design which he had seen in an architect's office,
but before he begins the execution of his purpose changes his mind,
never calls for or uses the plans, or even builds the house, is he
liable to the architect for the value of the plans and for
superintendence? In such a case, there certainly in no contract
between him and the architect upon which a recovery can be
based.
Page 103 U. S. 161
The claim of the plaintiff is that by the adoption of the
resolution by the city council and the county board, without any
act done or assent on his part, they were bound to go on and erect
the building on his plans and expend $2,909,000, its estimated
cost.
The resolution did not bind the plaintiff to furnish his plans
and superintend the building. There was no mutuality, and therefore
no consideration -- both of which are essential to a contract.
Notwithstanding the resolution, the plaintiff might have said, I
will not furnish my plans, and I will not superintend the building,
and the defendants would have had no claim on him.
If one does not accede to a promise as made, the other party is
not bound by it.
Tuttle v. Love, 7 Johns. (N.Y.) 469. When
A. signs a writing by which he declares he will sell to B. his
house at a certain price, this is a mere proposition and not a
contract.
Tucker v. Woods, 12
id. 189.
In
Wood v. Edwards, 19
id. 250, where A. wrote
that he had agreed to a substitute for an existing agreement which
he would execute, Spencer, C.J., said the proposition of A. to
execute the new agreement was not binding on him, as well on the
ground of want of consideration as want of mutuality, since the
plaintiffs on their part were not bound to execute the
agreement.
In the case of
Kingston v. Phelps, Peak.N.P.C. 299, the
plaintiff proved that the defendant consented to be bound by an
award to be made on a submission by other underwriters on the same
policy, but the witness proved no agreement on the part of the
plaintiff to be bound by the award. Lord Kenyon held that there was
no mutuality, and therefore the defendant's agreement was a mere
nudum pactum.
An offer of a bargain by one person to another imposes no
obligation upon the former, unless it is accepted by the latter
upon the terms on which it was made. Any qualification of or
departure from them invalidates the offer, unless the same be
agreed to by the party who made it.
Eliason v.
Henshaw, 4 Wheat. 225.
See also Webb v. Alton
Marine & Fire Insurance Co., 8 Ill. 225;
Maclay v.
Harvey, 90
id. 525.
Page 103 U. S. 162
In this case, there being only an expression of purpose by one
party to erect a building according to plans antecedently made by
another, and no obligation entered into by the other party, and no
plans used or building erected, there was no contract between the
parties, either express or implied.
If we are correct in this conclusion, then all the evidence
offered by the plaintiff to prove the value of the plans, and the
time employed, and the expenses incurred in their preparation, was
irrelevant and immaterial.
The only purpose for which such evidence could be admitted would
be to prove the damage sustained by the plaintiff by the breach of
his alleged contract with the defendants. But if he had no
contract, express or implied, he was entitled to no damage, and
could show none.
It is complained that the evidence offered to prove the custom
of architects was excluded. We think it was rightly excluded.
Proof of usage can only be received to show the intention or
understanding of the parties in the absence of a special agreement,
or to explain the terms of a written contract.
Hutchinson v.
Tatham, Law Rep. 8 C.P. 482;
Field v. Lelean, 30
L.J.Ex. 168;
Baywater v. Richardson, 1 Ad. & E. 508;
Robinson v. United
States, 13 Wall. 363.
In all cases where evidence of usage is received, the rule must
be taken with this qualification, that the evidence be not
repugnant to or inconsistent with the contract.
Holding v.
Pigott, 7 Bing. 465, 474;
Clarke v. Roystone, 13 Mee.
& W. 752;
Yeats v. Pim, Holt N.P. 95;
Trueman v.
Loder, 11 Ad. & E. 589;
Bliven v.
New England Screw Co., 23 How. 420.
The inference from these principles is inevitable, that unless
some contract is shown, evidence of usage or custom is
immaterial.
The plaintiff says he was ready to prove a custom of architects,
that when prizes were offered for plans of a building, the
successful competitor remained the owner of his own designs, and if
they were adopted, he was entitled to compensation therefor in
addition to the prize, and that, by the same custom, the adoption
of his plans entitled him to superintend the erection
Page 103 U. S. 163
of the building, and to the usual remuneration therefor. He
claims, therefore, that in view of this custom, the adoption of his
plans by the passage of the resolution referred to by the city and
county boards, amounted to a contract, on the part of the
defendants, to pay for the plans and employ him to superintend the
erection of the building, and pay him therefor.
The offer of the plaintiff to prove certain facts having been
rejected, he must be presumed to be able to prove what he offered
to prove. We must therefore assume that the custom which he offered
to prove did in fact exist. But what was that custom? Clearly, that
if the building was erected according to the successful plans, the
architect was entitled to pay therefor. That was such an acceptance
and adoption of his plans as would give him the right to
compensation therefor, and the right to superintend the erection of
the building and receive the usual remuneration. The custom
certainly did not bind the party who offered prizes for plans,
after having paid the prizes, to pay also for plans that he never
used, and for superintendence of a building that he never erected,
merely because he had selected a particular plan and announced his
purpose to build in accordance with it. If such were the custom and
usage of architects in Chicago, it was an absurd and unreasonable
custom, and therefore not binding.
United
States v. Buchanan, 8 How. 83.
If the plaintiff had offered to show that after the passage of
the resolution by which his plan was accepted, the defendants had
erected their building according to his plans, then the evidence of
the custom would have been pertinent. But he made no such offer,
and it is to be presumed no such fact existed. The evidence of this
custom was, therefore, properly excluded.
The plaintiff complains that he was not allowed to prove the
value of his services in verifying the cost to the proposed
building according to his plans.
We think the court was right in excluding this evidence. There
was no proof nor any offer of proof to show that the services of
the plaintiff were rendered at the instance or request of the
defendants or either of them. From all that appears, the
Page 103 U. S. 164
services were voluntarily rendered by the defendant, and no use
whatever was made of the results of his investigation. The law
therefore does not imply a contract to pay for them, and proof of
their value was quite immaterial.
The evidence rejected was properly excluded on another ground.
The defendants were charged in the declaration with a joint
liability, but there was no privity between them, either by law or
contract. The evidence offered was to show a joint liability. So
far as it went it failed to do this; on the contrary, it was made
to appear that each of the defendants was building its own part of
the structure at its own expense, and for its own use. After the
award and payment of the prizes, they assumed no joint liability,
as the evidence admitted clearly showed. And the evidence offered
did not tend to establish a joint liability. It did not, therefore,
support the case made in the declaration, and was properly excluded
from the jury. As the plaintiff asked no leave to amend, this
ruling of the court is not a ground of error.
We find no error in the record.
Judgment affirmed.