187 Iowa 51 | Iowa | 1919
I. The town of Anthon, defendant, advertised for bids for the erection of an electric power house. The plaintiff was the lowest bidder. A formal contract was entered into with him on December 5, 1916, duly signed by the mayor and clerk on the part of the defendant town, and by Hansen in his own behalf. Pursuant thereto, Hansen proceeded to the erection of the power house upon the ground of the defendant, and expended a large amount of money for labor and materials therefor.
On January 18th following, the city council passed an order repudiating the contract, and denying its own authority to enter into the same, and served notice accordingly upon Hansen, coupled with a demand that he desist from further performance of the alleged contract. Pursuant to such demand, the plaintiff did desist. The events transpiring subsequently, upon which defendant relies for an estoppel, will be considered in another division. ■
We will consider first the question of the right of the plaintiff as of the time of the alleged breach of the contract.
“No resolution or ordinance for any of the purposes hereinafter set forth shall be adopted without the Concurrence of a majority of the whole number of members elected to the council, to wit:
“1. To pass or adopt any by-law or ordinance;
“2. To pass or adopt any resolution or order to enter into a contract;
“3. To pass or adopt any ordinance for the appropriation or payment of money; but in towns, by-laws, ordinances, and the resolutions and orders set forth in this section shall require for their passage or adoption a concurrence of four councilmen, or of three councilmen and the mayor. On the passage or adoption of every by-law, ordinance, and every such resolution or order, the yeas and nays shall be called and recorded. No money shall be appropriated except by ordinance.”
The town council consisted of five members. On December 4th, a meeting was had, which was attended by four members and the mayor. At this meeting, a motion was made that a contract be entered into with the plaintiff. This motion, being put by the mayor, presiding, re-
in the contract, yet the infirmity was one which could have been remedied by subsequent formal proceedings by the council. It could have been so remedied by the vote of the same three members and of the mayor. We think it equally clear that the municipality was not wholly powerless to ratify the contract by the conduct of its council pursuant to its purported adoption ,of such motion, in so far as such conduct was in good faith, in the interest of the city. The irregularity, such as it was, was not substantial. At most, it was only formal and doubtful. Our first question, therefore, we answer in the affirmative.
“Beduced to a last analysis, we think the situation presents simply this question: Can the defendant city be held liable for benefits received,- notwithstanding the fact that, in entering into the contract, the power possessed by it was defectively exercised? And it is our judgment that both reason and authority require an affirmative answer to such question. To begin with, the contract proposed by Starr was signed by him in good faith, and no other act on his part was required to make a binding contract. As far as the city was concerned, there was no purpose lying behind the defect in the execution of such contract, but such defect was occasioned solely by inattention on the part of the city council to the form of procedure prescribed by law. So, too, the waterworks company had no part in the enactment of the ordinance in question. Here, again, the defect was the result of careless inattention on the part of the city council. In this connection, we may concede that, in the case of an executory contract, a municipality may be heard to deny the validity thereof, upon pointing out the fact that, in connection therewith, the prescribed forms of law were not observed; and this would be true without reference to any question of intention or good faith, and notwithstanding the party with whom the contract was sought to be made had no actual knowledge of the existence of the defect. Manifestly, however, the principle involved in such cases has no application to a case where the contract has been fully executed according to its terms by such other party. * * * Now, in view of all this, we agree with counsel for appellant that the city cannot avail itself of an irregularity occurring in connection with the execution or adoption of the contract agreement to defeat its liability for the water actually furnished, received, and used at the contract rate.. The irregularity
In Miller v. City of Des Moines, 143 Iowa 409, we said:
“In any event, the work has been done; it has been accepted by the city; it is of a character which cannot be returned to the contractors, and thus place them in statu quo; it is work which, if not done by this contractor, would have to be done by some other person; the prices charged are not shown to be unreasonable; the invalidity of the contract is not chargeable to any wrong or omission on the part of the contractor, but solely to the act of the city, through its council. To say that the party doing such work must receive no. remuneration therefor, and must return the compensation already received, is to impose all the
The defendant relies upon the case of Citizens’ Nat. Bank v. City of Spencer, 126 Iowa 101, and kindred cases. This case dealt with a contract for improvements, the cost •of which was to be assessed against abutting property. The contract involved was not one made by the city for its own corporate benefit. The rule of strictness applying in this class of cases, where the power of assessment against abutting property is exercised even against the will of the property owner, is not necessarily applicable to a case where the municipality enters into a contract for its own corporate benefit, and obligates itself to pay therefor. We reach the conclusion, therefore, that, upon the facts stated, as they were at the time .of the repudiation of the contract by the defendant town, the plaintiff was entitled to claim a quantum meruit for the work done. Whether such quantum meruit should be deemed the measure of damages for breach of contract, or as due under an implied promise to pay, is not material, upon this record.