78 Tenn. 643 | Tenn. | 1882
delivered the opinion of the court.
The plaintiffs below sued the defendant for eight thousand dollars, for services rendered the city, by Mrs. Amelia Toney, the matron of St. Vincent’s Hospital, for nursing, maintaining and taking care of the charity
There was a verdict and judgment in favor of the-plaintiff, for $6,700. A motion for a new trial was overruled, and the defendant appealed.
There is not only ample testimony in the record to support the verdict, but, so far as we can see, the demand of the plaintiff appears to be. just and meritorious. Whether the verdict and judgment can be permitted to stand, depends upon whether or not there is reversible error contained in the record.
The charter of the city provides, that the mayor • and aldermen shall have the power, by ordinance, within the city, to appropriate money and provide for the payment of the debt and expenses of the city; also to establish hospitals and make regulations for the government thereof. On the 26th day of December, 1867, they passed an ordinance reciting that, “The Faculty of the University of Nashville, with commendable zeal and enterprise, have at their own expense, procured a suitable building on south College street, near said University buildings, and have named it St. Vincent’s Hospital, in which they propose treating al
The testimony showed fully that at the time of this arrangement and the passage of the above ordinance, that the faculty had constituted the plaintiff matron of said hospital, and agreed with her that she was to furnish, at her own expense, the nursing, sustenance and attention, etc., specified in said ordinance (except medical attention, which the faculty was to furnish gratis), and was to receive the entire compensation from the city therefor; and that this arrangement was known to the authorities of the city at the time they passed the ordinance, and that it was passed in view of the same. And that they traded, dealt with and paid her as the contracting party, for furnishing said nursing, supplies, attention, etc., to said patients under said ordinance.
On the 21st of January, 1868, the joint board of the city council passed the following resolution: “ Whereas the Matron of St. Vincent’s Hospital has
á.nd on July 27th, 1870, they passed the following resolution: “ Resolved - by the mayor and city council, that Mrs. Toney be allowed seventy-five cents per day for each charity patient at St. Vincent’s Hospital.”
And on the 7th of June, 1873, they passed the following resolution: “That the mayor, in conjunction and with the advice of a sanitary commission of physicians, just appointed by the mayor, be and they are hereby authorized to adopt and carry out such measures, and employ such means, as may be deemed necessary to maintain the health of the city, and to prevent the further spread, if possible, of -the cholera.”
The testimony showed, that a large number of cholera patients were sent by the mayor and sanitary commission to the hospital to be nursed and taken care of, etc., by the plaintiff, who furnished them nurses, bedding, care, boarding, lodging, medicines,
It was first objected by defendant, and the court was requested to charge the jury that there was no privity of contract between the plaintiff and the defendant; that the contract, whatever it. was, was between the Faculty of the University and the defendant; and that the plaintiff was not entitled to maintain the action. This the court declined, but charged that under the resolutions of the city council above referred to, the plaintiff was entitled to maintain the action in her own name as matron of the hospital, and recover whatever sum the proof should show she was entitled to. This charge, in view of the testimony, was correct, and might have gone further and stated, that if the defendant had -made no other provision for taking care of its charity patients, and knew that the plaintiff was taking care of and supporting them for and on account of the city, and accepted and received the benefit of such services, she could recover, under the common count in assumpsit for work and labor, etc., whatever the same was reasonably worth, even if there was no special contract existing with the plaintiff: 2 Kent’s Com., 291; 9 Cold., 453; 42 N. H., 125; 13 Ill., 371; Dillon on Mun. Cor., sec. 385.
In the progress of the trial, the court permitted the plaintiff to prove by a number of witnesses, over the objection of the defendant, that the mayor of the city (and perhaps some member of the city council), had within six years next before the institution of the suit, recognized the plaintiff’s demand for the items of
This instruction, as well as the admission of the testimony above referred to, is assigned as error, and makes the question: Had the mayor of the city the power to bind the defendant by his promise, so as to take the case out of the statute of limitations, or prevent its forming a bar to plaintifFs right of recovery-upon this branch of her case?
It is provided by the charter, sec. 6, that “The mayor and aldermen” (now council) “shall have power by ordinance * * to appropriate money and provide for the payment of the debt and expenses of the city.” And by an ordinance of the city it is provided, “That the mayor shall, at the commencement of the municipal year, appoint a standing committee of three, who shall be known as the committee on improvements and expenditures. That all propositions having any relation to improvements or expenditure of money, or incurring any liability, shall be referred to said committee, whose duty it shall be to inquire into the character of the improvement, proposed expenditure, or liability, and the immediate necessity of the same, and make their written report to the city council, giving the result of their investigation, and their reasons for the approval or rejection of said propositions. That no person, whether
We have not been referred to any authority, either in the charter, ordinances or resolutions of' the city, and can find none, which authorizes or empowers the-mayor, by his individual or sole promise, to bind the city for any purpose, and hence we presume there is none. • And as will be seen by the provisions of the above cited ordinances, he is prohibited from doing so, unless authorized by existing laws, or by order of the city council.’
It is scarcely deemed necessary to cite authorities to show, that without such authority he has no power to do so. In the case of Mayor and City Council of Nashville v. J. G. Fisher et al., decided at Nashville, 1876, unreported, this court, Judge Freeman delivering the opinion, says: “We hold the principle to be sound, as stated by the Supreme Court of New Jersey, Sachem v. Seymour, 24 N. J. R., 153, that the powers oí a municipal corporation can only be exercised by the governing, legislative body of such corporation, or we ' may add, by other agents of such corporation, in pursuance of authority given from such governing body, in the form of an ordinance, or legislative enactment