121 Iowa 306 | Iowa | 1903
The fact that full and satisfactory ser vice as alleged, was rendered by plaintiff, and those whom it succeeds, during the entire period in controversy, is not disputed. There are presented substantially four grounds of defense,. These are: (1) That the contract under
2 authority contractrfo°r waterwoiks. We readily agree with counsel for appellee that what was done at the initial meeting of the council did not amount to the making of a contract; nor do we think the proceedings had can be construed into a'warrant of authority to the mayor and recorder prooee¿ to'the execution of a formal written contract. This conclusion arises readily from the mere reading of the record of the proceedings. It was voted simply that the council at once enter into contract relations with Starr, and no other action on the part of the council appears. The appointment of a committee to meet with Starr the following morning was not pursuant to any vote of the council, but was done by the mayor on his own motion. Moreover, had it been the purpose to authorize the execution of a contract writing by the' vote taken, the yeas and nays should have been called and recorded. Section 498, Code 1873.
It should be' said in this connection that it- is the theory of counsel for appellee that the vote upon the
The Nebraska Case presents conditions practically indentical with the facts.in the case at bar, and the language of the statute of that state is substantially that of our own statute. The ordinance there in question, as disclosed by the title, was one to authorize the construction and maintenance of a system of waterworks, and to use streets, etc., for laying mains. It was held that a provision in said ordinance whereby the city obligated itself bo pay hydrant rentals was neither clearly nor obscurely expressed in the title, and that, as the title was not an index to the contract, the contract itself was void. Counsel for appellant insists however, that even taking the view
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 asserted did not involve a want of power. Had such been the case, the other contracting party might well be held to have acted in the premises at his peril. But it cannot be true, in reason or authority, that he may be despoiled of the fruits of the contract after the same has been fully performed on his part, simply because the city council is now able to point out that the draftsman employed by it had unintentionally and carelessly omitted to make reference in the title of the ordinance adopted by it to certain of the provisions contained therein. ' Every principle upon which the law
Upon the whole case we conclude that the trial court was in error in dismissing plaintiff’s action and rendering judgment against it for'costs. The judgment is accordingly reversed, and the cause remanded for further proceedings according to'law. — BeveRSed.