The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1904-03-11


vision, the following provision, in which
respect said specifications were changed,
to-wit:
''It is understood and agreed that time
| is of the essence of this contract, and
| that the whole of said pavement, curb
| ing, guttering, boulevarding, and other
| improvements shall be finished and COM
pleted to the acceptance and satisfaction
of the board of public works of said city
of Mankato on or before August lst,
1902, and that for each and every day
the work herein contemplated shall re-
| main incomplete and unfinished accord
| ing to the terms and conditions hereof
after the time above mentioned, the said
party of the first part hereto shall and
will pay to the said party of the second
part hereto the sum of Twenty Dollars
per day as the fixed and liquidated dam
ages suffered and sustained by said party
of the second part hereto by reason of
and on account of such failure and delay
together with all expenses of engineering,
and all other expenses necessarily in
Cured after the time above limited shall
have expired, provided such failure or
delay is not through unavoidable causes;
the work at all times to be under the
supervision of the city engineer of the
party of the second part hereto"
That at the time said contract was eX-
ecuted and said alterations made there
was pending suit for an injunction
against the carrying out of said contract,
and there was in force a temporary
restraining order issued in such, all of
which is hereafter alleged. That said al
teration was substantial and material, de-
prived defendant of valuable rights, and
conferred upon plaintiff substantial ben
efits not offered to other bidders, and
further relieved plaintiff from a very
onerous condition, particularly in view
of the tendency of said suit, which had
for it's purpose the stoppage of all work
upon said proposed improvement.
H. That plaintiff at all times had
full knowledge of all the foregoing facts.
That the specifications upon which bids
were asked contained provisions, chang
ed and eliminated as hereinbefore set
forth, which were harsh, and onerous and
we'll calculated to deter bidders and pre-
vent free and fair competition and ma
terially increase the cost of said i'm
provement. That each and all of the
changes made were substantial, operated
to the advantage of plaintiff, were made
and agreed to simultaneously with the
acceptance of the bid of plaintiff and as
one entire transaction, and the accept
ance of said bid and the execution of
said contract were based upon said speci-
fications as changed and not otherwise,
and if such alterations were contained
in the specifications upon which bids
were asked many bids would have been
received, and the cost of such improve :
ment would have been reduced from
twenty to twenty-five per cent. That
by reason of the facts aforesaid said
contract is illegal and void. /
IL. That prior to the opening and con-
sideration of bids upon said improvement
and on the 31st day of March, A. d.
1902, an action was duly commenced in
the district court of Blue Earth county,
Minnesota, by John Diamond, tax pay
er of defendant and owning property
abutting upon the proposed improve
ment, against the defendant, the mayor,
and aldermen of defendant, the board of
public works and the members thereof
and the city recorder. That based upon
the pleading therein temporary re-
order was duly made and is
sued, and the summons and complaint,
and said restraining order were served in
due manner upon each and all of said de-
PENDANTS upon the lst day of April, A. D.
1902. That copy of said restraining
order, summons and complaint are here
to attached, marked exhibit two, three,
md four, and hereby made a part of this
answer, as fully as if copied herein at
ength. That the object and purpose
If said action, and the object, purpose
md scope of said restraining order, fully {
appear therein, and reference is hereby ]
made thereto. That Immediately upon
he commencement of said action, plain
if was fully advised in relation thereto, t
veil knew that said action had been COM c
nenced, examined into and was fully adj c
Used and well knew the nature, pur- &