59 Iowa 95 | Iowa | 1882
I. The plaintiff introduced evidence showing that it issued to Green its six per cent-negotiable bonds, which were received by him in payment and satisfaction of the judgment. After the introduction of such evidence, and on the second day of the trial, the defendants filed an amendment to their answer in which they averred that the bonds were issued without authority of law, and were void and constituted no -payment of the judgment. They averred that, at the time of the issuance of the bonds, the plaintiff city had already issued its bonds in anticipation of its revenues in excess of five per cent of the taxable property of the city. The plaintiff moved to strike out the amendment to the answer, and the court sustained the motion, on condition, however, that the amendment might remain on file if the defendants would pay the costs of the suit to that date, and $25.00 as terms. The defendants refused to submit to the ternas, and the amendment to the answer was stricken out. The defendants assign as error the ruling upon the motion.
"Whether, if the • amendment had averred anything which the defendants were entitled to prove, the coxxrt would have been justified in imposing the teixms which it did as a condition of allowing the amendment to remain on file, we need not determine. We do not think that the validity of the bonds could be assailed upon the ground therein alleged.
The averments contained in the amendment appear to have been made in part with reference to the constitutional restriction xxpon municipal indebtedness, limiting it to five per cent of the value of the taxable property. Bxxt the constitutional restriction does not appear to us to have any application. It may be greatly doubted whether the validity of the bonds could be properly assailed by reason of the constitutional restriction, even if the plaintiff’s indebtednesss exceeded the constitutional limitation at the time the judgment was rendered. It is very clear that if it did not, and there is no infirmity in the judgment for that reason, the
But the defendants rely in part upon a provision of statute. They say that municipal corporations are authorized to issue bonds only as evidence of a loan of money, and that if we are to treat the transaction as a loan of money it cannot be upheld provided the indebtedness of the city at the time exceeded five per cent of the value of the taxable property, as the amendment avers it did.
The provision of statute relied upon is section 500 of the Code and is in these words: “ Loans may be negotiated by any municipal corporation in anticipation of the revenues thereof, but the aggregate amounts of such loans shall not exceed the sum of five per cent of the taxable property.”
The court gave an instruction to the effect that an agreement made by Hedges would not bind the plaintiff unless the same was ratified by the city council. The defendants assign error upon this instruction.
We are not prepared to say that a ratification by the city council was absolutely necessary. Some of the members of the court are inclined to think that the street committee had power, in the discharge of its duties as such committee, to contract for dirt for street repairs as the need of the same might arise from day to day, and without any sjieeific action of the council thereon. But it is not necessary to determine this question, because there is no evidence that the alleged agreement was made by the street committee, unless the action of the chairman could be held to be the action of the
While it appears that the street commissioner removed a portion of the dirt, the evidence shows that he did so only at the request of the defendants. Besides we are of the opinion that there was nothing which he could have said or done which would have had the effect to ratify Hedges’ agreement unless he had the power to bind the city by a contract made by him originally, and we are unable to discover that he had such power.
The mayor, it is true, in being examined as a witness for the defendants, testified that the matter of using the dirt was talked over in the council; and in giving his testimony he used this expression: “We had concluded to use it because it was more convenient.” Now if it should be conceded
In our opinion the instruction was properly refused. Where a person places an obstruction in a street of a city, he is not in a condition to demand of the city that it shall remove the obstruction at its own expense, if it has knowledge of it, and in case of failure to remove it after such knowledge that it shall be precluded from looking to him for indemnification if it is adjudged to pay, and does pay damages for an injury caused by the obstruction. Swansey v. Chace, 16 Gray, 304; Wobern v. R. R. Co., 109, Mass., 285; Dowell v. R. R. Co., 23 Pick., 24.
The views above expressed cover, we think, substantially the errors assigned, and we have to say that we think that the judgment must be
Affirmed.