38 A.2d 225 | Pa. | 1944
On May 18, 1926, the City of Erie adopted an ordinance providing for the paving of the roadway of certain streets and for the appointment of viewers to assess benefits; the assessments were to be paid in ten instalments, the first one thirty days after the completion of the work and the others semi-annually thereafter with interest at six per cent per annum. The ordinance declared it to be the duty of the city treasurer promptly to collect the instalments as they become due and at the expiration of four months from the date of the confirmation of the assessment by the court to deliver a certified list of all unpaid assessments to the city solicitor who was thereupon to file municipal claims; upon failure of any property owner to pay the amount of any instalment and interest the treasurer was to request the solicitor to commence the proper action to collect such delinquent assessment. For the purpose of paying the contractor there were to be issued street improvement bonds which were to rest for their security only upon the assessments and to bear interest at the rate of six per cent per annum until paid.
In accordance with this ordinance the work was performed and the city issued the bonds at various times during the years 1926, 1927 and 1928, payable within five years from the respective dates thereof and bearing interest at six per cent per annum. The bonds stated that they were issued in pursuance of the ordinance, that they rested for their security solely upon the assessments levied on the lands abutting on the improved highways, and that they were to be called in and paid as *161 funds were received by the city treasurer from the assessments.
Similar ordinances covering the paving of other streets were adopted by the city and like bonds issued thereunder.
Plaintiff is the owner of these street improvement bonds to the extent of $37,000 face value issued at various times between November 30, 1926, and September 28, 1928. The present action is in assumpsit against the City of Erie for that amount, with interest at six per cent per annum from the respective dates of issue of the bonds. The alleged liability of the city was predicated upon an averment that it did not proceed with the collection of the liens within a reasonable time and when they could have been collected, nor did it press the owners of the properties for payment; also that it was negligent in not levying sufficient assessments, filing valid liens, reviving liens, and taking other steps at the proper times to make and protect the assessments. The case was tried by the court without a jury. Testimony was presented by plaintiff to show that there had been delay in filing the viewers' report extending beyond the statutory period; negligence in failing to provide sufficient interest inasmuch as the liens bore interest from dates later than the issuance of the bonds; delay in redeeming bonds resulting in further deficiencies of interest; improper releasing of properties from liens; failure of the city treasurer to request the solicitor to collect delinquent assessments upon defaults in payments of instalments; and failure on the part of the solicitor to institute suits in assumpsit against solvent property owners, to collect penalties due because of the non-payment of liens, and to institute proceedings to collect the liens although for several years after the issuance of the bonds there was sufficient value in the properties abutting the improvement to cover the amount of the assessments.
The trial judge found, as had the jury in the companion case of Palmer v. Erie,
By a long succession of decisions in this court it is established that even though improvement bonds of the type here involved expressly provide against general liability of the city, and that they are dependent for their security only upon the assessments against the property owners, the city makes itself subject to such liability if it is negligent in enforcing collection of the liens for the benefit of the bondholders. This ruling rests upon the fact that it is only the city which can take such proceedings, and therefore the law writes into these bonds an implied covenant that the city will use due diligence in collecting the liens and if it fails to do so will itself pay the bonds according to their terms with the same force and effect as if they were full faith and credit bonds of the municipality.
In Addyston Pipe Steel Co. v. City of Corry,
In Gable v. Altoona,
In O'Hara v. Scranton,
In Dime Deposit and Discount Bank of Scranton v. Scranton,
In Dale v. City of Scranton,
In Nolan v. City of Reading,
In Price v. Scranton,
In Palmer v. Erie,
In Bessemer Investment Company v. City of Chester,
It will be observed that in all of the cases cited2 the suits were in assumpsit and were brought directly either on the contract under which the improvements were made or on the bonds which financed them; also that in each of them interest was recovered. The theory underlying these decisions is that the liability of the municipality arises, not in tort, but from contract, and is based upon an implied covenant that due care will be exercised in the filing and enforcement of the liens and that, if the city fails to exercise such care, it will pay the bonds just as though it had been originally named therein as general obligor. If, therefore, this implied *165
covenant is broken, the resulting damage to the bondholders is not, as the court below held, unascertained, unliquidated, and limited to what might have been collected had the city been duly diligent; on the contrary, full recovery is allowed in the face amount of the bonds and the interest as therein provided. From this it also follows that the allowance of interest after the maturity of the bonds was not a matter within the discretion of the court, for, in the absence of an agreement to the contrary, a liquidated claim carries interest with it, as of legal right, from the time the debt becomes due. Interest "is completely due, wherever a liquidated sum of money is unjustly withheld. It is a legal and uniform rate of damages allowed, in the absence of any express contract, when payment is withheld, after it has become the duty of the debtor to discharge the debt": Minard v. Beans,
Since the City of Erie became liable on these bonds by reason of its failure properly to pursue the collection of the assessments it becomes unnecessary to consider the constitutionality of the validating Acts of April 11, 1929, P. L. 509; June 23, 1931, P. L. 929; June 3, 1933, P. L. 1466; and May 26, 1943, P. L. 660; which imposed liability in all cases where municipalities had issued this type of bonds, even though the bonds were expressly limited to payment out of collection of assessments on the properties abutting the improvement.3
The statute of limitations is not a bar to this suit. The action, as already explained, is not in tort for negligence but upon the bonds themselves. The ordinance, outlining the duties of the city treasurer and the city solicitor, was expressly referred to in the bonds. But even if the covenant to use due diligence be regarded merely as implied the same result would follow, for whatever is necessarily implied in a contract is as much a component part thereof as if expressly stated, so that an action upon an implied promise in a written contract is an action upon the written contract itself and is governed by the same statute of limitations: Persons v. Dallas,
The record is remitted to the court below with direction to add to the amount of the judgment an allowance of interest at six per cent per annum from the respective dates of the bonds; as so modified the judgment is affirmed.