CITY OF DENVER.
(Oi'rcuit Court, D. Colorado. December 8, 1886.)
MUNIOIPAL CORPORATIONS-LIABILITY ON CONTRACT F()R WORK TO BE PA.ID FOR BY Sl'ECIAL ASSESSMENT, WHERE NO ASSESSMENT WAS LEVIED.
A city directed the making of a sewer by an ordinance reciting that it was in accordance with a petition of a majority of the property owners, and employed therefor an inspector, who duly performed his services. The cost of the sewer was to be paid by It special assessment. It afterwards transpiring that the petition was not signed by a maiority of the property owners, the work was diScontinued, and no assessment made. Held, that the city was liable on an implied &,uarant)'that the petition was sufficient, and that the assess· ment would be levIed. '
On Trial by the Court without a Jury. Sam P. Rose, for plaintiff. J. H. Brown, for defendant.
BREWER, J. This is an action for services. The plaintiff was employed by the <lity of Denver to act as inspector of sewers, at a stipulatedsalary. 'He performed the services, and now brings this ac. tion to recover therefor. As I said when this question was before me on demurrer, I have no doubt that the city had the power, under the general provisions of its ordinances, to make a direct contract with this plaintiff for his services, by which contract the city would primarily have been bound. The contract which in fact was made was for s8l'vices to be paid out of the assessments for the Twentieth-Rtreet sewer; and it is in. sisted that the city has incurred no general liability by making that contract. The ordinances provide for district sewers, and that the city council shall cause sewers to be constructed in any district when· ever a majority of the property holders thereof shall petition therefor, or whenever the board of health recommend the same as necessary for sanitary reasons. It passed an ordinance creating the Twentieth. *'ltreet sewer district, reciting that it was in accordance with the peti. tion of a majQrity of the property owners therein. Then, in the sec· ond section, the council directed that the sewer be constructed, further provided an appropriation, etc. It went on in pursuance of that or· dinance, and ,did a good deal of work. It seems t,o have been ascer· tained thereafter that a majority of the property owners or holders did not petition, and the city abandoned further work. The plaintiff received sewer warrants as the work progressed, which were not paid, there having ,been no assessmentoJ,',1evy ther(jfor. He brings these warrants into court, and tenders them to the city. It is insisted, on the part of the city, that its sole liability was the making of an assessment and levy upon this sewer district; and that, if it has failed to discharge that duty, the plaintiff's sole remedy is by mandamUs proceedings to compel it to proceed therewith. And
familiar cases are cited, in which a party takes a warrant drawn on a particular fund, or makes a contract for sel'vicell payable out of a. particular fund, and his remedy is uniformly limited to that fund; as, for instance., if he takes a warrant from the county payable out of the poor fund, he cannot thereafter insist that the county's general revenues shall be appropriated to that warrant. But I do not think that rule is applicable in this case. The city made the contract, and impliedly it guarantied that it would make a levy upon certain property for the payment of these warrants. It is true that its power to proc.eed in the· premises depended upon the petition of a majority of the property owners; but no tribunal is in terms provided to determine whether such petition has been filed; and, there being no statutory provision for a tribunal to so determine, when the city council, as the general representative of the city, with power to act thereon, determines by its action that such a petition has been filed, third parties have a right to rely upon that, and say that the city is estopped thereafter to deny that such petition was filed. The city ordered this sewer to be built, and employed the plaintiff to do work on it, and it cannot now turn round and say: "Though I made this contract, I did not have authority, because there was not a petition of a sufficient number of citizens to justify my action." There is no other tribunal, no other body, to pass upon that, so that the action of the council is conclusive upon the city. The plaintiff therefore had a right to rely upon the fact that the city had power to proceed and make this levy; and it comes within those familiar cases in which a city, having contracted for improvements along the line of a street, guarantying impliedly that it will levy and collect taxes upon the abutting lot.owners for the purpose of paying for those improvements, by failing thereafter, when the work is done, to make the levy, becomes personally liable. It stands in the position of an implied guarantor contracting that it will do certain things in order to bring about the payment for those services. Failing to carry out its contract, it renders itself personally liable on the same principle that, when a private individual or a private corporation gives an obligation payable at a certain time in material or services, if, at the time named, it fails to so pay in the material or in the services, the right of the other party becomes then a mere money demand. Here the city contracted it would levy taxes in this district for the purpose of paying him for services. If it had made the levy, a different ques. tion might arise. But it did not. It did not perform its contract, and this becomes its personal obligation because it has failed to perform its contract. I have no doubt but that the oity is liable. Judgment for plaintiff.
FEDERAl. REPORTER.. COOKE and others
NAVARRO and others.
(Oircuit Oourt, 8. D. New York. December
NEW TRIAL-VERDICT-EvIDENCE EQUALLY BALANCED.
Where the testimony of plltintiff contradicts that of defendant, and each fscorroborated by other evidence, the conrt will not disturb the verdict.
The plaintiff's sue to recover for goods sold and delivered. The defense is that the goods were sold to one Pedro Garay, and not to the defend. ants. The cause was tried at the Deceinber circ]lit, and the plaintiffs. had a verdict. The defendants now move for a new trial. Prestoo Stevcnwn, for plaintiffs. Emmet R. Olcott and William Q. Judge, for defendants.
COKE, J. The .conclusion is reached, aftera full examination of the papers submitted on this motion, that the court will not be justified in disturbing. the verdict of the jury. The question now is, not what opinion the court entertains upon the facls, but was there sufficient evidence of a sale to the defendants to require a submission of the cause to the jury? The plaintiff Cooke testified positively to an agreement by the defendant Munoz, representing the firm, to pay forethe goods. This was an original promise. The plaintiffs' version of the transaction is corroborated by the fact thatthe bills were uniformly made out to the defendants, and accepted by them without objection. The defendants flatly contradicted the plaintiffs' testimony as to what took place when the bargain was consummated, and their theory that the sale was made to Garay is sustained by several collateral facts and circumstances. There was, then, a positive nssertionby the plaintiffs, and an equally positive denial by the defendants, each being corroborated, to some extent, by presumptions drawn from the undisputed testimony. In such circumstances the jury,and not the court, must determine the controversy. The verdict is not so clearly against the weight of evidence as to warrant thecourt in setting it aside, and the motion at the close of the testimony to direct a verdict for the defendants was, of course, properly denied. No exception was taken to the charge, and no exception to the admission or rejection of evidence is argued on the briefs. The motion is denied.