JU,.NGOR SAVINGS BANK 11. CITY OF STILLWATER.
11. CITY OF STILLWATER.
(Circuit Cowrt, D. Mmfl68ota, Thflrd DWr.Bion. March SI, 18112.)
KvmCIPAL INDEBTEDNESS-INVALIt> NEGOTIABLE CBBTIFICATEIf-MOltBY CElVED.
Where negotiable certificates of indebtedness issued .by a city have been sued upon by the payee, and declared invalid for want of power to issue negotiable instruments, the payee maymilintain an action for money had and received, prov,ided citrhad,power to make the contract out of which the indebtedness arose; and the fact that the payee was not a party to that contract is immaterial when the eel'. tificates were issued to him at the request of the contractor, and lihe money was received city and paid over to the contractor. '
At IJaw. Action by Bangor Savings Bank against the city of Stillwater for money had and received. On demurrer to amended complaint. Overruled. ' F. H.Lemon & Co. made a contract December 21, 1887, with the city of Stillwater, whereby they agreed to "vest" title in the cityto two &trips.afland, each 50 feet wide, and to widen Main ,street 50 feet, a certain distance, and to do all the excavating and that may be necthe 50 feet to the present grade, and to secure the relocation of certain railroad, tracks and certain sewerprivileges. For-the services to be performed and the land so acquired the city agreed to va()ate and, abandon certain condemnation proceedings,l1Dd vacate and surrender:all its right to certain parts of Laurel, Cherry,aJ;ld Linden streets; and, furthermore, on the, completion of the contract by Lemon & Co.,'to pay them $21 ,250, in three certificates of indebtedness, to become due, respecti"ely, on July 1, 1889, July 1,1890, and July 1, 1891. quently ,aD October 27, 1888, the certificates of indebtedness were issued to the Bangor Savings Bank as payee, reciting on their face that they wer,esq i811 ued at the request of Lemon & Co., and that a resolution of the city council was passed, and duly approved by the mayor, authorizjl)gthe making and delivering of the certificates to the bank. An action. to recoV:!lr. on the certificates failed fOJ: the want of power in the city to issue them. Suit is now brought for the money paid to the city of Stillwater, the certificates having been decided illegally issued. A demurrer to the complaint is interposed. Sanders « Bowers and Owen Morris, for plaintiff. Fayelte Marsh, for defendant.
NELSON, District Judge. It is the settled doctrine that if a. municipal corporation has received money for an authorized purpose, derived from the issue of illegal and void bonds. and has applied it to that purpose, an action will lie as for money had and received, although the corporation had no authority to issue the bonds. Louisiana v. New Orleans, 102 U. S. 204; Chapman v. County oj Douglas, 107 U. S. 348, 2 Sup. Ct. Rep. 62; Hitchcock v. Galveston, 96 U. S. 341. The contract with Lemon & Co. was valid. It was within the scope of the chartered powers of the city of Stillwater. (See Judge THAYER'S opinion in this case, v.49F.no.9-46
46 Fed. Rep. 899, citing City Charter, c. 8, § 2, etc.) The city certificates are in·thehtnjdllof the pll!Ylle,and'containa',recltahthat they were issued inconsideration of the performance of the Lemon & Co. contract. The otr.tustice in Hitchcoclf 96 U. S. Jorciblyapplies. ,the city of ,made a with Hitchcock &Co. topave streets. The charter gave the city po:Wer to contrac,t fo:thie the city agreM ,in ,the contract to pay for the work 1D negotiable CIty bonds, payable ata future day. '-'here was no express power uQ,der charter bonds for this purpose. The court,inter alia; ,said: ' :. "It is enough for them (the plabititrs] that the citycouncfl have power to enter into a contract for the improvement of the sidewalks: that such contract WaBmade with theni;tbat urider',itthey have proceeded to furnish material and do work. 8S w,ell M assume liabilitiesith,at the city has received and now enjoys the benefit of what they have done and furnished;, that for the city pronlised to that, after baving received the benof the ·contract. the city has broken it. It matters not that the promise wail to p_y iria manner Dot authorl'Led by law. If payment cannot be made in bon(l$ibel.'aUS9 their Issue is ultra "ites, It would be sanctioning rank in-j llSticeto bold that payment need not be made at all." There is a strikiJig similarity in the above case, and the one at bar. It is that in the former the action was brought by a party to the contraet with the City, but that fact does not change the principle volved.The 'demmrer 'interposed to'the complaint in this case admits the contract made with Lemon its performance by them, and that the 'certificates.dra.winginterest,' arid payable at' a future day, were i88ued to plaintiff in consideration of the performance by Lemon & Co. ofits contract with the city. The counsel for the defendant has very forcibly presented his views, which prevail, unless the contract with Lemon & Co. was authorized under the charter. Having deter'mined that tbe city could lawfully make the contract, and by the de;. murrer the 'receipt of the ·money being admitted. and the use of it in payment on the contract, I ani constrained to overrule the demurrer, 'Yith leave to the defendant to answer in 20 days; and it is so ordered;
NEW .:nmSEY &: . N. Y. B. CO. fl. Y().UNG.
& N. Y. B.Ca.
(CIrcuit Oourt oj' Appeal:B, Second
January 18, 1899.)
Negligence oannot be imputed to a fireman becau",e he does not endeavor to en· force upon ,the engineer obedience to the regulations of the railroad. For a fireman, knowing of a defect in the air-brake, to remain upon a locomotive is not conclusive of negligence on hill part, and it Is a proper question for the jury whether the defect is such tbat a man of ordinary prudence and intelligence would not have remained, and also whether the acoident would have happened had the brake been in propel' order.
.um BERVANT-PBRSONAL INIURIES-IMPUTBD NBGLIGBNOB.
8AMB-KNOWLEDGE 011' DEII'ECT!l-CONTINUANCB IN SERVICE.
8AME-PROMISE TO RBPAIB.
The negligence of a fellow-servant does not excuse the master from llablllty for an accident which would not have happened had tbe master performed his duty. (6 Fed. Rep. 160, dlrmed. '
On Writ of Error from Circuit Court, Eastern District of New York. Action by William H. Young against the New Jersey & New York Railroad Company, for damages lor personal injuries. The cause was origiOlllly brought in the supreme court of New York, and subsequently removed to the federal court. Verdict and judgment were there rp.ndered for plaintiff, and a new trial was denied. Deiendllnt brings elTor. Affirmed. Robert w: De Forest, for plaintiff in error. Charles C. Suffrffn, (Irving Brown, of' counsel,) for defendant in error. Before WALLACE and LACOMBE, Circuit Judges. WALLACE, Circuit Judge. This is a writ of error by the defendant in the original suit to review a judgment for thtl plaintiff rendered upon a verdict of the jury. The plaintiff, a fireman in the employ of the defendant, while firing the locomotive of an express train on the defendant's railway on a trip from Jersey City to Havl:Jrstraw, was injured by a collision between his train and some cars upon a sidetrack of the railway. The side track was not disconnected from the main track at the time, and ,this fact was indicated by a danger signal of a red light, intlieating that the switch was open. A white light would have indicated that it was closed. The track was straight for a considerable distance ahead of the switch. The side track was at a station where there is a junction between the tracks of the defendant's railway and those of another railway. Among the regulations of the defendant, furnished to its engineers, Wert' the following: , "All trains must approach ... ... ... junctions ... ... ... prepared to stop; and must not proceed until the switch or signals are seen to be right, qrthe trat·k is plainly seen to. be clear. ... ... ... Ht' [the engineer] must always run upon the supposition that at any station he may find a switt'h out of.;place, and he must have his train well in hand. on apl'l'oaching a SWitch or station. H