Howard v. City of Oshkosh, 33 Wis. 309

Howard v. City of Oshkosh

33 Wis. 309 | Wis. | 1873

Lyon, J.

It is not denied that the defendant, the city of Oshkosh, has in its treasury and under its control $122, which it agreed to pay to the plaintiffs, but now refuses to do so. It is not claimed that the plaintiffs have failed in any particular to perform their contract with the city, or that their work is not worth what the city agreed to pay for it. Under these circumstances it would seem to be eminently just and equitable that the city should fulfill its contract and pay over the money to the plaintiffs, and that, on its refusal to do so, the plaintiffs should recover it in this action.

But it is contended that there are certain legal objections in the way of such recovery, which are insurmountable. These objections will be considered in their order.

1. The city charter provides as follows: “ All work for the city * * * shall be let by contract to the lowest bidder, and due notice shall be given of the time and place of letting such contract.” P. & L. Laws of 1868, ch. 501, sub-ch. 13-sec. 1 (p. 1378). It is not claimed that due notice of the let *312ting of this work was not given in the first instance, or that the plaintiffs were not the lowest bidders therefor. But it. is said the contract was not let to the plaintiffs under their proposal or bid to do the work for $22,975, but that the council, without readvertising for proposals or bids, let the contract for building the turn table to plaintiffs for $14,000, and for building the approaches to Paine & Sawyer for $8,975. We do not so understand the evidence. The plaintiffs proposed for the whole work, and their proposal was accepted by the council. The work was all done pursuant to such proposal, except the painting, and the price therefor specified in the proposal, except $300, was paid to the plaintiffs. The only testimony which tends to sustain the theory of the city attorney in his behalf is that of the city clerk, who says : “ There is a written contract between the parties for draw and turn table, for $14,000. The city gave Paine & Sawyer the privilege of building the approaches, the city to have the right to take it off their hands, it not exceeding $8,975, within a year.” It does not appear when such privilege was given, or that Paine & Sawyer ever had any contract with the city to build the approaches, or that they had anything whatever to do with the building of them. But were this otherwise, it is still perfectly apparent that the contracts were let and the work done pursuant to the bid of the plaintiffs, which was made in response to a notice calling for bids for the whole work and duly published. This all that the charter required.

2. It is claimed in the next place that the contract with the plaintiffs was a violation of the following provision of the city charter, and hence that no action can be maintained to enforce it: “ The council shall have authority to apppropriate in any one year, over and above the ordinary expenses needed on the bridges in said city, an expenditure not to exceed ten thousand dollars, for the building of a new bridge in said city, or for any extraordinary repairs on any bridge, and for the payment of the same in whole or in part. The council, instead of collecting *313the same in the next tax roll, may issue its bonds,” etc. P. & L. Laws of 1870, cb. 395, sec. 17 (p. 969).

The plain intention of the legislature embodied in this provision is, that not more than the specified sum shall be raised by taxation in any one year for the purpose of building new bridges or making extraordinary repairs on old ones ; or if city bonds be issued instead of levying a tax therefor, the amount of such bonds shall not exceed that sum in any one year.

We are not informed by the record in this case, except by inference, whether the common council have or have not violated this provision of the city charter by levying more than $10,000, or by issuing bonds for more than that amount, in any one year, for the purpose of paying for the bridge in question. The presumption is, that the council have kept within the provisions of the statute. Hence it becomes unnecessary to determine what the effect would have been, had the council exceeded its powers in this respect.

3. The only remaining objection to the plaintiffs’ right to recover in this action, which it is necessary to consider, is, that their demand has not been verified by affidavit. The charter provides that “ no account or demand against the city shall be acted upon or paid unless the same shall be verified by affidavit,” etc. P. & L. Laws of 1868, ch. 501, sub-ch. 6, sec. 12 (p. 1355).

It does not appear from the record (except by presumption) whether the demand in controversy has or has not been thus verified. But it appears that the common council acted upon the plaintiff’s demand for the whole contract price of the work, and directed it to be paid, except the cost of painting. As a matter of course, this demand was included in such direction. Hence the common council have acted upon and allowed the demand to recover which this action was brought, and have directed it to be paid. It is of no importance that this demand was thus: acted upon as part and parcel of a larger one. In the absence *314of affirmative proof on the subject, it must be presumed, iu favor of the regularity and legality of the proceedings and action of the common council, that the plaintiffs’ demand was duly verified, before that body acted upon it.

Upon the whole, we think the plaintiffs made out a prima fade case, and that the nonsuit ought not to have been granted. The judgment of the county court must, therefore, be reversed, and a new trial awarded.

By the Court. — So ordered.