102 Minn. 213 | Minn. | 1907
Lead Opinion
Plaintiff and respondent brought an action against defendants'and appellants to recover the unpaid balance for materials furnished to one Kirkland to be used in the construction of the “Somerville sewer.” Kirkland contracted to construct the sewer, and, as principal, signed an instrument in which the appellants joined as sureties, which purported to be a bond to the city of St. Paul conditioned for the performance of the contract, and for the payment for the labor and materials furnished in its execution. The total amount of the account was $6,286.30. The balance unpaid was $2,967.55. The amount of the bond was $59,200. The present is a test case. The court found for the plaintiff. It found as facts, inter alia, that the course of the sewer carried it under property hereinafter more fully set forth as to which the city had acquired no right by condemnation or grant. This appeal was taken from an order denying defendants’ motion for a new trial.
Defendants’ essential argument is that, if the contract was ultra vires and void, so also was the bond, aqd that the agreement was shown to have been ultra vires and void.
In the first place, the agreement required the construction of a sewer through property not owned by the city. The sewer provided for in the contract was a main sewer of about forty two hundred feet in length. It is cut into two almost equal parts by a railroad right of way and adjoining private property for two hundred five feet. It is proposed to construct it to the Mississippi river as an outlet. In connection with the latter proposition, it is argued that a sewer is of no value unless continuous, or unless it has an outlet. It cannot reach the river because the last eighty five feet is owned by the United States government. The result was two disjointed pieces of sewer without an outlet. The significant fact is that the ultra vires part of the contract leaves the sewer valueless. A contract to construct a useless sewer in private property is beyond the power of the city. The invalidity appears upon the face of the contract.
In 9 Harv. Law Rev. 255, Mr. George Wharton Pepper combats—and we think successfully—the existence of any clear distinction between the principles of the earlier and of the present decisions or of inextricable confusion on the subject in the American reports. He
With respect to contracts by municipal corporations, one current opinion is that: The “contracts of corporations, whether public or private, stand on the same footing with contracts of natural persons, and depend on the same circumstances for their validity and effect. The doctrine of ratification and estoppel is as applicable to corporations as to individuals.” Argenti v. City of San Francisco, 16 Cal. 256, 257. We incline, however, to accept the views of Judge Dillon on the subject, thus summarized by counsel for the defendants: “The general principle of law is settled beyond controversy that the agents, officers, or even the city council of municipal corporations cannot bind the corporation by any contract which is beyond the scope of its power. * * * The history of the workings of municipal bodies has demonstrated the salutary nature of this proposition, and it is the part of true wisdom to keep the corporate wings clipped down to the law
The first of these describes a contract which is not within the scope of the powers of a corporation to make under any circumstánces, or for any purposes; for example: “Where a corporation authorized only to build a railroad engages in banking.” Mitchell, J., in Minnesota Thresher Mnfg. Co. v. Langdon, 44 Minn. 41, 46 N. W. 312. Where “the legislature, for instance, having authorized you to make a railway, you cannot go and make a harbour.” Kindersley, V. C., in Earl of Shrewsbury v. North Staffordshire, 35 L. J. Ch. 156, 172. So, in the cases to which defendant refers us, it was held to be wholly outside of a city’s power to “surrender control over streets” (State v. Minnesota Transfer Ry. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656); to pay money to aid in building a shoe factory within its limits (City of Chaska v. Hedman, 53 Minn. 525, 55 N. W. 737); to aid in the construction of a dam for the purpose of improving a private water power (Coates v. Campbell, 37 Minn. 498, 35 N. W. 366); to construct a building for the use of another municipality or other third person (Borough of Henderson v. County of Sibley, 28 Minn. 515, 11 N. W. 91; Village of Glencoe v. County of McLeod, 40 Minn. 44, 41 N. W. 239); or without authority to buy real estate (Ba
The former class is ultra vires in the primar}', and really only proper use of the term, while in the second it is merely secondary. Mitchell, J., in Minnesota Thresher Mnfg. Co. v. Langdon, supra. That is to say, an ultra vires municipal contract, in its true sense, is a contract relating to matters wholly outside the charter powers of a corporation. 2 Dillon, Mun. Corp. §§ 935, 936. In Miners v. Zellerbach, 37 Cal. 543, 578, 99 Am. Dec. 300, Sawyer, C. J., justly remarked: “These distinctions must be constantly borne in mind
in considering a question arising out of dealings with a corporation. When an act is ultra vires in the first sense mentioned, it is generally, if not always, void in toto, and the corporation may avail itself of the plea. But, when it is ultra vires in the second sense, the right of the corporation to avail itself of the plea will depend upon the circumstances of the case.” And see City of Valparaiso v. Valparaiso, 30 Ind. App. 316, 65 N. E. 1063; Rogers v. City of Omaha (Neb.) 107 N. W. 214; 5 Thompson, Corp. §§ 5975, 5976, 5977; 2 Dillon, Mun. Corp. § 936; 2 Current Law, 977.
In the second place, the present contract is ultra vires, if at all, as to a small part only. It is convenient to postpone the consideration of irregularities in the letting of the contract, and to here refer only to the failure of the city to condemn. So far as that failure is addressed to private property, which the city could have condemned, the controversy is disposed of by the ruling in Keough v. City of St. Paul, 66 Minn. 114, 68 N. W. 843. It was. there held that the contract for grading a street is not ultra vires, because the council has omitted to establish gradient lines, nor because condemnation proceedings have not been consummated. In the last analysis, however, defendants rely on the fact that the outlet of the sewer, to the extent of eighty five feet, was owned by the government, and that the contract was beyond the power of the city, because it involved the commission of a trespass. In this connection we are cited to Sang v. Duluth City, 58 Minn. 81, 59 N. W. 878. It was there held that a contractor could not recover loss of profits because the city had not acquired the right of way across the property of a railway company for a street which he undertook to grade, pave, and otherwise improve. As to such a part of the contract, it was held to be ultra vires. It was said in that case: “Plaintiff does not claim to recover for any work so performed, but claims loss of profits for being prevented from performing on the railroad right of way and loss by depreciation of material purchased for that part of the work.” That case is obviously not at all inconsistent with authorities holding that “an entire contract is not invalid because part thereof is ultra vires. * * * ” A court should not destroy a contract made by parties further than some good reason requires. Elliott, Mun. Corp. § 291. And see Illinois T. & S. Bank v. City of Arkansas City, 76 Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518; Spier v. City, 138 Mich. 652, 101 N. W. 846, 2 Current Law, 977, notes 82, 83. The decision most nearly similar to the case at bar in this connection which we have been able to find is Coit v. City of Grand Rapids, 115 Mich. 493, 73 N. W. 811. This is the rule. That a contract void as to an inconsiderable or insignificant part is as to the rest valid is only one of its applications.
In the third place, the features of this contract objected to remain
In the leading case of Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659, Mr. Justice Strong approves of the following rule laid down in State Board v. Street Railway Co., 47 Ind. 407, 17 Am. 702, in an action against a municipal corporation: “Although there may be a defect of power in a corporation to make a contract, yet, if a contract made by it is not in violation of its charter or of any statute prohibiting it, and the corporation has by its promise induced a party relying on the promise and in execution of the contract to .expend money and perform his part thereof, the corporation is liable on the contract.” This was followed and approved in City of East St. LOouis v. East St. Louis, 98 Ill. 415, 38 Am. 97. In Argenti v. City of San Francisco, 16 Cal. 256, after elaborate examination of the authorities, recovery on an executed contract with the city was allowed, although there was no evidence that the officer who signed them was expressly authorized. To the same effect are Rogers v. City of Omaha (Neb.) 107 N. W. 214; Bodewig v. City of Port Huron, 141 Mich. 564, 104 N. W. 769; Lines v. Village of Otego, 91 N. Y. Supp. 785; Wilkins v. Mayor, 9 Misc. 610, 30 N. Y. Supp. 424; City of Tyler v. Jester, 97 Tex. 344, 78 S. W. 1058; City v. Valparaiso, 30 Ind. App. 316, 65 N. E. 1063 (a particularly well-considered case); City of Fergus
We have referred to these considerations to make plain the restricted sense and extent of the ultra vires aspect of this contract and its executed character, as well as the trend of judicial position concerning the legal position of plaintiff’s contract. The facts that as to a small portion of a contract with a municipality only it was ultra vires in any sense, and that it has been substantially executed by the parties basing rights of ,action upon it, are strong, if not conclusive, considerations for refusing to hold it absolutely void. It is, however, unnecessaiy, and because of the course the argument has taken in this court, undesirable, to determine whether the contract was valid in the sense that the contractor could have recovered on it from the city.
In a suit against the bondsmen of the contractor, it is difficult to discover what considerations of public policy would tend to favor the forfeiture of this plaintiff’s right. Without controversy, “all persons contracting with a municipal corporation must, at their peril, inquire into the power of the corporation or its officers to make the contract.” State v. Minn. Transfer Ry. Co., 80 Minn. 108, 117, 83 N. W. 32, 50 L. R. A. 656; Bazille v. Board of Commrs. of Ramsey County, 71 Minn. 198, 73 N. W. 845; Newbery v. Fox, 37 Minn. 141, 33 N. W. 333, 5 Am. St. 830; Mitchell v. Board of Commrs. of St. Louis County, 24 Minn. 459. It might accordingly be reasonable to hold that a materialman dealing with a public contractor is bound to see that the contract with the city is of a class within the' scope of municipal powers. But defendants’ reasoning on this point, carried to its logical conclusion, would have imposed on the material-man, before he extended credit on the strength of the contract and' bond, the necessity of not only passing on the validity of the action of the council, but also of determining through what premises the sewer was to pass, according to the survey, and their correct de
There is good authority to the effect that where the act of a corporation is done with power to do it, but without the formality prescribed for the execution of the power, persons dealing with the company are not bound to do more than to ascertain that the power to do the proposed act exists. 5 Thompson, Corp. 5978; 2 Morawetz, Priv. Corp. §§ 678, 686. Allen, J., in Moore v. Mayor, 73 N. Y. 238, 245, 247, 29 Am. 134, said: “Persons dealing with corporations in respect to a matter within the general scope of the powers of the city government need not go behind the doings of the common council, apparently regular, to inquire after preliminary or extrinsic irregularities. * * * It is indispensable to any government, state or municipal, that full faith and credit be given to the acts of the governing body, and that individuals having occasion to deal with agents of the government should be permitted to regard the acts of the government valid in the absence of any apparent defect, either in the power or the manner of its exercise. If the act is not within the general pow
The policy of the law — and apparently the law itself — oppose the adoption of defendants’ views. Nor does the admitted principle that the defendants, as sureties, are entitled to the strict construction of the facts giving rise to an action against them, and are generally favored in the law, affect the doctrine of ultra vires. As a matter of abstract justice, the sureties to whom a consideration of legal sufficiency has moved, although it does not appear that substantial benefits have accrued to them, have held themselves out as responsible for the validity of the contract to persons having the right to rely upon the security that bond is expressly designed to afford. Moreover, “Volente non fit injuria.” Red Wing Sewer Pipe Co. v. Donnelly, supra, page 192, 113 N. W. 1. The contractor could not assert the plea of ultra vires against the city to escape liability on the contract or to retain benefits received under it. By parity of reasoning, the sureties are in no position to raise the same defense as against this materialman. See City of St. Louis v. Davidson, 102 Mo. 149, 14 S. W. 825, 22 Am. St. 764; City of Fergus Falls v. Fergus Falls Hotel Co., supra; Baker v. Northwestern Guaranty Loan Co., 36 Minn. 185, 30 N. W. 464; National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; 10 Cyc. 1166; 5 Thompson, Corp. § 6030. This reasoning is in exact accord with the rule founded upon estoppel, and frequently applied to defeat the plea of ultra vires which denies to a party benefited by a con
The most nearly specific authority which has been called to our attention, or which we have been able to find, is City v. American, 118 Wis. 480, 511, 95 N. W. 1097, 1108. The court, per Winslow, J., there said: “Taxpayers whose money is about, to be spent, or property owners whose land is about to be charged, may challenge the legality of municipal acts and contracts calling for such expenditures on the ground that the proper legal steps have not been taken, but persons who enter into a contract with the city stand in a different position. Such a person cannot even make the defense of ultra vires or total lack of power on the part of the corporation to make the contract. Security Nat. Bank v. St. Croix Power Co., 117 Wis. 211, 94
Our attention has, however, been directed to Conant v. Newton, 126 Mass. 105. There sureties on a probate bond were held not es-topped to assert its invalidity because the trustee had been appointed orally. A number of questions as to acts ultra vires of a municipal, corporation were involved. The case is properly regarded as one of a group in which a surety has been held not estopped by a recital due to fraud or mutual mistake, without any fraud or negligence on his part. Blaney v. Rogers, 174 Mass. 280, 54 N. E. 561. No equitable relief was sought in the case at bar because of any mutual mistake or fraud. The allied cases will be found collected in 1 Brandt, Sur. § 57. Cf. section 56. We have examined all of these cases in detail. Some of them tend to confirm the conclusion here reached; some of them are inconsistent with it and with the general trend of authority. See 40 Cent. Dig. Principal & Surety, § 91%. Undoubtedly there are cases, and lines of cases, more or less out of harmony with the conclusion here reached, and others in addition to those here referred to tending to support it.
7. In view of the clear tendency of the courts to avoid injustice from the application of the,doctrine of ultra vires, of the restricted sense in which in any aspect this contract may be regarded as of that character, of the absence of reason for destroying the contract because only part was not directly within the power of the city, of the extent to which it has been executed, and of the peculiar position of the bondsmen defending against a materialman who in good faith sold material for the benefit of the contractor, in reliance on a bond on which he had a right to rely, and which recited the contract as valid and subsisting, we are clearly of the opinion that the conclusion of the trial court on this point was correct.
Incidentally defendants have argued that, when plaintiff furnished the material for the construction of the sewer, it is not shown where
Order affirmed.
Concurrence Opinion
(concurring).
The sureties cannot be heard to assert that this contract is ultra vires. A municipal corporation with charter power to construct sewers irregularly entered into a contract for the construction of a particular sewer which was to extend in part through land over which the corporation had acquired no right by grant or condemnation. The contractor executed a bond with the required sureties, conditioned upon the faithful performance of the contract with the city and the payment of the lawful claims for labor and materal used in the work. This bond recited that the principal had entered into a contract with the city, and that the contract had been duly executed by each of the contracting parties. By executing this bond the sureties acknowledged that the contract was valid and the bond authorized. I think it is settled that a guaranty of payment of an obligation or the performance of an undertaking imports an agreement that the instrument is valid and the undertaking legal.
If the sureties on the bond can defeat the claims of laborers and materialmen, because of irregularities in the making of the contract referred to in the bond, it follows that every man who contemplates selling a foot of pipe to a contractor, and every laborer, before commencing work with his shovel, must employ counsel learned in the .law to ascertain whether the corporation counsel has properly performed his duties and verify the formal statement of the sureties that a contract exists between the city and the contractor.
This burden rests upon the sureties, and they are bound by the recitals in the bond. I would place the decision upon this ground.