6 Wash. 442 | Wash. | 1893
The opinion of the court was delivered by
On the 17th day of November, 1890, the respondents and the appellant entered into a written contract, the material portion of ivhich is as follows:
*443 “This agreement, made this 17th day of November, A. D. 1890, between John Y. Arnott and Charles Ferguson and , copartners, doing business tinder the firm name of John Y. Arnott & Company, of Spokane county, State of Washington, party of the first part, and the city of Spokane Falls, by C. F. Clough, mayor, party of the second part, witnesseth that the said party of the first part, in consideration of the covenants on the part of the said party of the second part hereinafter contained, hereby covenants with the said party of the second part that tlie said party of the first part will furnish the stone required for the Monroe street bridge piers, according to the plans and specifications, cut and delivered upon the ground where needed, according to the plans and specifications, ready to be set in place; a part of the rock to be delivered within sixty days, and completed within sixty days. Said stone shall be as per sample furnished the city council this 15th day of November, free from loose seams or imperfections of any kind, and subject to the inspection and acceptance of the city engineer. All stone must be dressed so that their top surfaces shall be parallel with their beds, and require no tooling after the stones are set. All coping stones shall be cut according to the plans furnished by the engineer, and shall have all exposed surfaces bush hammered, and comply with all other requirements of the engineer, as set forth in the plans and specifications now on file in the city clerk’s office, which are hereby made a part of this contract, as far as said specifications refer to the stone to be used in the piers of said Monroe street bridge. And the said city of Spokane Falls, party of the second part, in consideration of the covenants on the part of the said party of the first part hereinbefore contained, agrees to and with the said party of the first part that the said party of the second part will pay to the said party of the first part, or his order, §1.32 for each and every cubic foot of cut stone so delivered, to be measured in the pier, according to the approximate estimate made on' Monday of each week of material delivered prior thereto. Said estimates to be made by the city engineer, and to be paid in cash immediately after said estimates have been reported to the city council, which is to be done at the next meeting after said estimates. In witness whereof,” etc.
It seems to be fairly deducible from the evidence that
During the course of the trial, the court admitted certain testimony tending to show the verbal agreement above mentioned in regard to the payment of extra cost of labor, transportation of materials, etc., and also testimony as to the agreement to discount the warrants of the city. The appellant insists that the ruling of the court in this regard was erroneous, and contrary to the express terms of the statute. Sec. 85 of the charter of the city, which was then in force, provides that—
“The city of Spokane Falls is not bound by any contract or in any way liable thereon, unless the same is authorized by a city ordinance, and made in writing and, by order of the council, signed by the clerk or some other person authorized by the city, but an ordinance or resolution may authorize any officer or agent of the city, naming him, to bind the city without a contract in writing for the payment of any sum not exceeding fifty dollars.” Laws 1885-6, p. 321.
The contention of the appellant is, that neither the bridge committee nor the mayor had any right or power to bind the city by any agreement or contract not made in writing,- and signed by some person duly authorized to execute it. Upon this point we have no doubt of the correctness of ap
“The act of incorporation is to them an enabling act; it gives them all the power they possess; it enables them to contract, and, when it prescribes to them a mode of contracting, they must observe that mode, or the instrument-no more creates a contract than if the body had never been incorporated. ’ ’
In fact, so far as we have observed, the authorities are practically uniform on this question. Nor do the respondents appear to seriously dispute this proposition of law, but they contend that the city, by its conduct, acquiesced in and ratified the acts of its officers. The argument is that the city might have originally made the same agreement that its officers made, and hence had the power to ratify it, and must be held to have done so in this instance. But the difficulty arises, not from a want of power in the city to make contracts, but from the restriction imposed upon it by the legislature with reference to the mode of exercising such power. The power to ratify a particular contract presupposes the power to make it in the first instance; and, if it is such that it could not be made origi
While conceding the power of the appellant to make the written contract above set forth, we are of the opinion that it had-no authority in law to discount its own warrants. Such a proceeding is manifestly beyond the scope of legitimate corporate power, and a practice of that character might lead to ruinous results. City warrants are evidences of indebtedness or promises to pay, and are payable with interest prescribed by law, and the corporation cannot cast upon the taxpayers any further burden in respect thereto, and the courts have uniformly, so far as we are advised, disapproved every effort to do so. Clark v. Des Moines, 19 Iowa, 199; Foster v. Coleman, 10 Cal. 279; Bauer v. Franklin Co., 51 Mo. 205; State v. Wilson, 71 Tex. 291 (9 S. W. Rep. 155).
It is contended, however, on behalf of the respondents, that, inasmuch as the city had power to borrow money, it had the power to discount its warrants as a means of raising money, as a necessary implied power. But we are unable to agree with counsel in this view of the law. The
It is also insisted that the city, by paying a portion of the discount on its warrants in accordance with the agreement of its officers, ratified such agreement, and is now es-topped from asserting the contrary. But we are constrained to take a different view of the law, and to hold that an illegal contract is incapable of being ratified; and the fact that counsel for appellant, in the court below, admitted that the contract was thus ratified, cannot avail the respondents here, for that question can only be determined by reference to the law. What the law will not sanction as a contract cannot be made such by the admissions of a party or his counsel. Polk Co. Sav. Bank v. State, 69 Iowa, 24 (28 N. W. Rep. 416). And, moreover, as we understand the evidence upon this point, the money actually paid to the respondents as discount was donated for the purpose by private individuals and corporations, and was, therefore, strictly speaking, not disbursed by the city at all, although a portion of it may have passed through the hands of its treasurer. From these considerations it follows that it was error to charge the jury to the effect that the respondents were entitled to recover the difference between 10 per cent, of the face value of the warrants received by them and the amount received on account of discount.
The appellant complains of the instructions of the court . given to the jury as to the measure of damages for breach of the contract in question. In the sixth instruction, the jury were advised that if the plaintiffs were compelled, by reason of bad roads and the extra price they had to pay
Instruction No. 7 was erroneous for the reasons already given. By it the jury were told that if, by reason of the suspension of cash payment on behalf of the defendant, the
Instruction numbered 8 cannot be sustained, for the reason, already shown, that a contract which the law requires to be in writing cannot be made valid by acquiescence or ratification.
Instructions numbered 9, 10, and 14 are equally faulty. The first two relate to the question of damages, and seem to be based upon the theory that, although the respondents performed their part of the contract after the time therein limited had expired, they were, nevertheless, entitled to recover for the loss of time and extra cost of material occasioned by delay. The fourteenth instruction charged the jury, among other things, that the plaintiffs were entitled to payment of discount on its warrants, and in that regard was erroneous.
It is argued, on behalf of the respondents that it would be unjust and unconscionable to permit the city to repudiate the contract of its officers to the detriment of the respondents; and, if it were a question of mere moral obligation, we would feel inclined to adopt the view of counsel. But, the question being a purely legal one, its solution must rest upon legal, and not upon moral or ethical, principles. Wherever a person enters into a contract with an agent of a municipal corporation, he must at his
Without further discussion of the questions involved in this case, we conclude that the respondents were, under all the facts and circumstances, only entitled to recover the amount remaining unpaid, if any, according to the terms of their contract, together with legal interest on deferred payments, .and the value of the extra stone furnished, which the appellant seems to concede should be paid for, and for which, it contends, it has already paid.
The judgment is reversed, and the cause remanded to the lower court for further proceedings in accordance with this-opinion.
Dunbar, C. J., and Scott, Stiles and Hoyt, JJ., concur.