Bridgford v. City of Tuscumbia

16 F. 910 | U.S. Cir. Ct. | 1881

Pardee, J.

The argument in this case has taken a wide range, —much wider than is necessary for the decision of this case. There can be no doubt at all, under the facts in this case, that the mayor and board of aldermen of the city of Tuscumbia purchased the engine, and incurred the several obligations to pay the same, for and on account of the city of Tuscumbia. They had the authority to make the purchase. Mayor, etc., of Birmingham v. Rumsey, 63 Ala. 353; 1 Dill. Mun. Corp. §§ 93, 94, pp. 210, 211. See Charter, Acts Ala. Sess. 1865-6, p. 191. As they had the authority to make the purchase, they, of course, had the authority to obtain terms and enter into the necessary contracts, provided they were not restricted in that behalf by their charter, which is not claimed in this case. See Trustees v. Moody, 62 Ala. 389.

The burden of proof is on the defense to show the want of consideration pleaded. This has not been shown; on the contrary, from the weight of evidence in the ease, I am satisfied that the engine in controversy, when taken care of and handled by a capable person or persons, is a valuable machine, and can be of great assistance in the extinguishment of fires. These conclusions would seem to dispose' of the case, .but the'counsel for the defense have strenuously tad learnedly urged two propositions to defeat the plaintiff’s demand that’I have no hesitation in passing upon. It is said that the acceptance of the contract by the mayor and board of aldermen cannot be shown save by the minutes in writing of the meeting at which the acceptance was ordered, and as such record shows no meeting, none can be proved.

In Dill. Mun. Corp. it is said:

“But a distinction has sometimes been drawn between evidence to contradict facts stated on the record and evidence to show facts omitted to be stated upon the record. Parol evidence of the latter kind is receivable unless the law expressly and imperatively requires all matter to appear of record, and makes the record the only evidence.” Sec 1 Dill. Mun. Corp. § 287; Bank, etc., v. Dandridge, 12 Wheat. 64.

“ The rights of creditors or of third persons cannot be prejudiced by the neglect of the council to keep proper minutes, against the corporation. What the council in fact did may he shown by evidence aliunde the record kept by it.” Bigelow v. Perth Amboy, 1 Dutch. 297; San Antonio v. Lewis, 9 Tex. 69; Trustees v. Cagger, 6 Barb. 576.

The ease of Perryman v. Greenville, 51 Ala. 507, does not conflict with these propositions. The corporation in that case proved, by its record of proceedings, that a certain allowance claimed by the defendant, one of its officers, was not made by the council, and the supreme court held tlie records or minutes admissible, saying that they were tlie best and only evidence of the fact that such an allowance had or had not been made. My attention has been called to no Alabama case supporting the defendant’s pretensions in this regard. The other proposition argued is that as Fitch, agent, paid the mayor $25 for circulating the petition for the purchase of an engine among the tax-payers, that it amounted to lobbying and corruption, so as to taint with illegality the contract of purchase; relying on Trist v. Child, 21 Wall. 441.

A sufficient answer to this is that no such defense is pleaded in the case; hut I deem it proper to say that the evidence shows that the agreement to pay the mayor for circulating the petition was after the purchase had been practically agreed upon by the board of aider-men, and no intention to corrupt any one, and no actual corruption, appears or can be fairly inferred from all the facts in the case. On the whole’case I am satisfied that plaintiff is entitled to judgment for the amount of notes sued on, principal and interest, and as a jury has been waived and the case submitted to the court, such judgment will be entered, with costs.