*1 704,; BROS.
MEGARRY THOMAS. ST. CITY OF 7444. No. Supreme North Dakota. Court
Sept. 2, 1954. Rehearing Nov. On
705 Day, Stokes, Gillig, Vaaler & Grand Forks, appellant. Grafton, M. Clayburgh, for defendant J. respondent. MORRIS, Chief Justice.
Because pre- of the unusual situation appeal sented necessary we deem it to set out the pleadings length. at some plaintiff alleges
2.
“That the of Saint Thomas is Municipal Corporation organized and existing under and virtue of the laws of the State of North Dakota.
3. “That between day the fifteenth
June, 1948, day and the January, first 1949, the Plaintiff furnished material equipment and furnished machin- ery and labor for the construction of of Saint Thomas of agreed value as follows: Excavation, 4,915 3,686.25 street C. Y. $0.75 $ Excavation, Inter. 465 C. Y. 0.75 348.75 Gravel, pit 5,462 11,743.30 run Y. 2.15 C. Pump 2,550.00 Housing Ea. 1 1,560.00 Catch basins Ea. 130.00 12 Manhole 1 Ea. 175.00 175.00 Pipe 18" Perforated 3.75 200 f. 750.00 Pipe 10" 1,072 Perforated 2.80 3,001.60 f.1. Pipe 8" 1,800 4,500.00 Perforated 2.50 1.f. Rock Trenchfill 1,960.00 3.50 C. Y. Gravel Trenchfill 2.15 590 C. Y. 1.268.50 2,045
Crushed Gravel Base 2.90 C. Y. 5.930.50 Bit, 10,528 Surfacing, 5,264.00 Y. 0.50 S. ½" Bit, Surfacing, 8,273 6,204.75 0.75 S. Y. 2½" 6,260 Prime Bit. Gal. 0.14 876.40 4,320 Seal Bit. 0.15 Gal. 648.00 Sand for Seal Ton 5.00 850.00 Force 1,071.65 Account Work in full and thereof was of that no material work and “That said owing. Fifty Thou- due Two value of agreed Eight and Eighty Hundred sand Three “As and For Further Affirmative *3 and was Dollars ($52,388.70) 70/100 accepted by the Defense and Counterclaim To Com- City the Engineer the for Plaintiff, Re- plaint of the Defendant City of said to the certified and spectfully Alleges and Shows to the has amount of said That no value. following: Court the Thirty except sum of the been Twen- Hundred Nine Thousand Seven I. Dollars ty ($39,725.75) Five and 75/100 and plaintiff negligently in “That the owing and of leaving a due balance manner an constructed unworkmanlike Hundred Twelve Thousand Six sum of Ha- paving of main street between ($12,662.95) Sixty and Two 95/100 as to and Avenue ger Avenue Cleland at the with interest together Dollars be trav- cause same to unfit for day January, the first of legal rates of el, City Thomas requiring the of Saint date hereof. paving dam- to their to reconstruct said Thousand, Five Hundred age of Two ($2,515.00) and Fifteen Dollars. demand for has made “That Plaintiff payment has that said sum and II. refused. approaches main street “That the “Wherefore, prays judg- for Plaintiff in such an unwork- were constructed Defendant the sum of ment for through negligence manlike manner Sixty Hundred Twelve Thousand Six plaintiff employees his and of ($12,662.95) Dollars and Two 95/100 proper drainage had without cannot together together with Plaintiff’s costs thereby fill and labor dam- considerable per an- the rate interest 4% of Saint Thomas aging day January, the first from num Thousand, Four Five Hun- amount of Plaintiff’s costs and together with ($4,500.00) dred Dollars. herein.” disbursements III. the defendant answer For its poor workmanship “That due to II negligence of the and his employees, drainage pipe extending City of Thom- that the Saint “Denies Cleland Avenue Moore Avenue knowledge informa- as has sufficient side main the west street was so the allega- a belief as to tion form placed it could constructed paragraph of said contained one tion water; possibly carry that due to not complaint. necessary negligence, act it was III employees his plaintiff and for replace drainage pipe at said additional City of Thomas affirma- “The Saint materials; of labor and that due cost approxi- alleges that between tively necessity of removing said drain- June, day 15th of the mate dates same, replacing struc- age pipes day January, 1st highway within lim- ture plaintiff furnished materials and specified machinery so hereinbefore was weak- and furnished equipment portion of pav- that said the road sunk construction ened for the and labor depression along the west causing side Thomas and of Saint ing in the street; repair materials, equipment, that to sunken ma- for the said highway, it will be labor, plaintiff has been nec- condition chinery and Thomas to essary for owners of less than majority expend moneys property excess of Three liable specially assessed ($3,500.00) Thousand, improvement Hundred Five which is all is to defendant’s of which made in Dollars district 1No. filed have protests against damage. making of said im- provement, and the time for filing such prays “Wherefore, The defendant protests expired, said date being the plaintiff’s action be dismissed day May, 17th protests 1948 and the with costs disbursements insufficient, filed are and therefore prays Judgment further defendant body and its governing are author- Ten for the sum against the empowered *4 and to cause said im- ized. Thousand, Fifteen Hundred and Five provement to be made and to contract Dollars, in- together with ($10,515.00) levy and and collect assessments there- terest, herein.” costs disbursements and for.” plaintiff answer the defendant’s To the appears prior It that meeting this to by replied denial. passed council had a reso- June lution declaring necessary it to be con- jury and to length at case was tried The venient and to best interests of the the evidence both and close of all of at the hard surface street be constructed The for a verdict. moved directed sides within the limits of paving district number and instructed court both motions denied May one. 17 had been set as the for date pleadings and evi- jury under the protests making improvement. dence, whereupon jury returned the engineer, An Spriggs, Theodore had been verdict: following employed prepared plans, specifica- and had empanelled “We, jury tions, and an probable estimate of the cost action, the de- find entitled for above proposed improvement. of the Notice of plain- the dismissal fendant for receipt of sealed upon bids based these we find for and tiff’s plans specifications and published had defend- plaintiff the dismissal of for April 15 only on and The bid received ant’s counter-claim.” plaintiff. was The council at the meeting of adopted June plaintiff The moved in the alternative for a following resolution: judgment notwithstanding the verdict or for “Be it by City motion denied Resolved trial. This on new Council Thomas, judgment on that of Saint October and date North Da- kota, plaintiff’s that the bid dismissing submitted McGerry was entered action. Bros, $39,725.75 appeals plaintiff judgment from the amount of The the construction of denying and the order project alternative within the Paving confines of motion. District One (1) No. and the furnishing of ma- specifies plaintiff errors law in the terials, labor and skill needed for said of evidence and in the admission court’s project, lowest and sole bid sub- jury. challenges It also instructions mitted and consultation with the support sufficiency evidence to City Engineer, Mr. F. Spriggs T. the verdict. Forks, Dakota, Grand North and with approval hereby said bid is and herein evidence, turn to the from which We now accepted approved.” and important these facts: At a we extract 8, 1948, special meeting Coun- adjourned meeting This to June meet on June passed Thomas cil of the Saint 15 to consider signed by resolution: Megarry Brothers. 15, 1948, and de- On “that this Council found a construction con- June
termined, declares, hereby and Megarry was executed tract Brothers Thomas, “approximate paragraph quantities” be furnished and the $39,725.75. and a as follows: total bid of which reads progressed changes As the work were “That, for the considerations plans made in the which increased the payments hereinafter mentioned to amount of both materials and labor that part, party the second made completed project. into promises agrees to the Contractor plaintiff approxi- that its contends bid was the material and furnish and deliver all mate and that it is entitled to be and la- perform all the work do work original all and materials above required be furnished and bor deliv- prices. defendant, estimate at unit paid as ered, pay cause or hand, the other contends that the additional due, any claims for they all become plain- work furnished materials including that performed, work or labor tiff were project, incidental to the cov- machinery repairing performed original lump bid, ered sum and that pow- renting any equipment, motor or is entitled no additional com- machin- kinds and equipment of all er pensation therefor. The strenuous- skill, hand tools ery furnishing' ly contends that the additional work and *5 premiums or insurance or materials according material were to the furnished as done and equipment, all supplies for city agreed price, accepted unit by were in and about construc- performed by city him engineer and to the certified project paving known and tion of the estimate, in a final and that the is by party of the second referred to judgment against entitled to a of (1), in One No. part paving as district agreed for this Saint Thomas and certified provisions conformity of with strict acceptance and certification value. are contract, bond, proposal and and this by controverted and one of approved specifications as and plans jury. submitted to the the issues City of of the Saint Council copies on file Thomas, of are presented unique We are here with a part, and second party plaintiff’s somewhat difficultsituation. The specifications and plans and which said submitted and the evidence un- hereby made a are proposal and bond it der contain the seeds of destruction of fully as part agreement of this plaintiff’s cause .The of action. had been as if same effect same point plain- seeks new trial. fatal to body agree- this set forth right recovery neither tiff’s ment.” pleaded presented in nor manner in Yet, grant we the court below. to in the construc- referred The bond judgment notwithstanding either a ver- into in the entered sum tion contract plaintiff requests, trial as dict or a new we contained this forty thousand dollars recovery judg- would thus sanction the provision: municipality contrary ment to ex- press statutory provisions. obligation is “The condition of whereas, principal has said such that questions Ordinarily not raised at the said a contract with into appeal, will not be trial considered on for the Thomas excep rule are but there certain of that dis- the confines project within pertinent has been tions. Where statute Paving District No. One as known trict plain resulting overlooked that is error to which contract reference (1), ” concern, public this court will consider * hereof: *. made as hereby brought though the error it be not to our Adley parties. either to in attention the contract referred proposal Darien, Express Co. 125 by Megarry Brothers set Town v. Conn. submitted a,nd 446; 501, Magnolia A.2d items 7 Petroleum Co. prices for various unit forth
709
81;
11,
State,
necessity
52 P.2d White v.
Okl.
determines the
175
for the
v.
work
763;
Mo.App.,
Co.,
McCoy
gives
101S.W.2d
general notice;
Land
but
it is
Allison,
213 P.2d
only
54 N.M.
majority
case ‘the
Mitchell v.
owners of a
231;
Pharmacal
v. Roberts
the property
Lambert
Co.
specially
liable to be
Bros.,
258; Crichfield
233 P.2d
assessed
proposed improve-
192 Or.
for such
Co.,
Asphalt
protest
174 Ill.
Paving
Bermudez
ment’
that the
council con-
protest
N.E.
siders
L.R.A.
all. The theory is that
only
ones affected are those as-
benefits, and,
sessed for the
therefore,
Dakota
Section
North
they are
assembly
only
ones
legislative
concerned.”
directs the
Constitution
organi
provide
law for
Turning
present statute,
now to our
we
corporations.
municipal
These
zation of
40-2236,
find that
pro-
Section
NDRC
pursu
municipal corporations when created
:
vides
agencies state
ant
statute become
only
powers expressly
con
and have
“A
provisions
contract let under the
legislature
or such
ferred
them
chapter
require
of this
shall
the work
may
necessarily
as
plans
done
to the
expressly
powers
granted. Fradet v.
specifications on file in the officeof the
N.D.,
Fargo,
Those assessments no gener incur can Saint Thomas would There property owners. from the liability fatal agreement was al improvement and that question that no plaintiff's right special to recover under assessments. through be financed contract. fact, states: plaintiff’s brief In steps as taken procedural “The support right In of its to recover the improvement provided for plaintiff this is an action on argues also submitted Plaintiff assessment recovery contract for accepted.” only bid which and materials reasonable value of labor the ef- problem accepted by consider it. We now furnished to the special improve- right under this support fect of a contract In of its to recover 40- provisions Section theory ment in which the cites McGuire v. 706, the mu- City, 1943 are omitted Rapid 43 N.W. Dak. improve- pay for the nicipality promises and Northwestern Sheet Iron L.R.A. & cash, County, as the contends ment in v. Sioux 76 N.D. Works plain here. agreement We are unable to read N.W.2d 605. im pleading action an tiff’s entering into contractual Persons plied But if contract for reasonable value. municipal corporations or relations were, plaintiff still could we not recover. *7 with notice chargeable officers are their liability prohibition general against The upon their limitations the extent of 40-2236is fatal in Section to contained City Fargo, 10 N.D. Roberts powers. v. upon contract, recovery by the 726; City County of San 230, 86 N.W. express implied. In either or McGuire v. Court, Cal.App., 231 Superior Francisco v. City, supra, City Rapid the distinction Widber, 583; 105 Cal. Von Schmidt v. P.2d power is a want of and an between made 682; Bankers Trust & 151, see also P. power irregular part on the exercise of Anamoose, 596, 51 N.D. Savings Bank v. municipality in the instance a latter 103; McQuillin, Municipal Cor 200 N.W. permitted. recovery It held that was Ed., Section 37.103. porations, 3rd city had into a where the contract make, power to it it had could not shield at the time The law existence power that the had the defense itself behind part is forms a contract made applied irregularly exercised. been We extent as if it contract same theory in Sheet & Northwestern Iron incorporated State ex therein. expressly County, supra, v. Sioux wherein we Works Klein, Cleveringa 63 N.D. v. rel. analyzed prior dealing cases with the our 1523; 118, 86 Williston on A.L.R. N.W. controversy. subject in Edition, Contracts, Revised Section 615. fall within contract must applicable pub “An is to contracts for rule This corporate powers. municipalities. scope general improvements made lic express contract that if the one is is must be treated rule and statutes The ordinances make, power municipality had no to i. part be contract entered into as strict e., sense of the ultra vires municipality and the contractor. tween
7H term, municipality or if not make was reargued could supplemental and a brief filed express sought an of the kind to appellant which the calls our attention enforced, municipality cannot be held particularly to the case of Pine Tree Lum A liable the value of benefits ber Company received. v. Fargo, 12 N.D. municipality required compensate is not 357, 360, to N.W. quotes a from which it contract, under a benefits received void number of passages seemingly support where td do would right so he to an tantamount city. against recover How statute, nulling doing by ever, or analysis indirection an of that case discloses that municipality permitted that which the is not it is point. not in The Pine Tree Lumber directly.” Municipal McQuillin, Company do Cor brought an against action porations, 29.111; Section Williams Far of Fargo to recover ten warrants go, 63 N.D. against city 247 N.W. drawn paving accounts. analyzed pertinent court statutes “Liability For a discussion of if they then existed and said: Payable Contract Price is from Assess- Municipal Corporations, Dillon, ment” see “As city between parties and the Edition, Fifth Section 827. with whom it contracted to furnish the labor pave and mate'rial and to can reach We no other conclusion but streets, city power had render 40-2236, prohibits that Section NDRC 1943 liable, generally itself notwithstanding municipality assuming incurring from or improvement the cost of the fall was to liability upon a general im- contract for ultimately upon abutting the owners of provements made 40- property. The scheme of the statute and that virtue was to enable the the im- make exemption liability statute from became provements statute, enumerated in the part of the contract entered into between and to reimburse itself for costs of Megarry Brothers through special the same assessments of Thomas. The claims that a total property abutting upon, and theoretical- liability $52,388.70 was incurred on the ly, least, benefited, to the extent of $39,725.75 city. assessments, by levied assessments benefited * * * nothing made. There property within the district. imposes upon statute person prohibited assuming or in- pave to whom the contract is let curring any liability under the con- requirement streets the to look alone to tract. What the is forbidden to do proceeds assessments express indirectly contract it cannot do pay, limiting recovery for his his *8 plaintiff is contract. The not en- the funds realized therefrom.” judgment titled to recover unpaid balance in an on action con- following theAt session the decision tract, express implied. jury either Company City Tree Lumber Pine of Far v. plaintiff’s dismissing returned a verdict ac- go, legislature enacted tion and counterclaim. defendant’s SLND 1905 providing new charter for Judgment has entered chapter cities. 18 of that dealt Article An alternative verdict. motion de- sewers, paving and watermains. Section judg- nied the trial court. The order and article, pre which is of that appealed ment from are affirmed. way in general scribed what contracts en provided tered into for work for in act BURKE, SATHRE, specifically contain should stated: JOHNSON GRIMSON, JJ., concur. “Each contract so shall into the time on or state before such Rehearing On completed, and work must be must state granted We rehearing in this case what fund the amount petition appellant. paid, The case thereon is to Pine opinion. statements in main contract of such the consideration Fargo Company Lumber Tree drawn only in warrants payable liability city un- of a regarding general city assumes fund, that such such are liability under der no incurs applicable. our longer We adhere to no such contract.” opinion. former continued requirements have These present down state of this law GRIMSON, SATHRE, and JOHNSON, 40- part of Section form a now time BURKE, JJ., concur. quoted in have which we