42 Ind. 106 | Ind. | 1873
The appellee sued the appellants and four others in the Superior Court. -It is not necessary to notice the proceedings against the others, as final judgment has been rendered for them and no cross errors have been assigned by the appellee.
The appellants demurred to the complaint. The demurrer was overruled. They then filed an answer, to which a demurrer was sustained, and final judgment was rendered against them for $359.04. They appealed to the general term, where the judgment was affirmed. Proper exceptions were taken and errors assigned, and the questions arising on the pleadings are fairly before us.
The complaint alleges that the defendants, members of the common council of the city of Indianapolis, passed “ an ordinance to provide for grading and gravelling Market street from the old corporation line to Hyland Street, including sidewalks,” under sections 68 to 71 inclusive, of the city charter; that the city engineer in pursuance of the directions of the ordinance, set the grade stakes for the improvement; that the clerk advertised for bids for the work; that the plaintiff submitted a sealed proposal to make the improvement, and entered into a contract for the completion of it, to the entire satisfaction of the city engineer; that he did the work pursuant to the requirements of the ordinance and
“ That at the time of the passage of said ordinance, the advertising to receive proposals for said work, and the receiving of the same and contracting for said work, the defendants, the mayor and members of the common council of the city of Indianapolis, by so doing, held forth and declared and affirmed that they had full power and authority and jurisdiction of and over said part of said Market street, and that the same and said premises of Mary E. Noble, and the premises of all others owning lots of land bordering on said part of said street, were within the limits and jurisdiction of said city, and subject to the jurisdiction and control of the common council thereof, when they knew that it was not, and thereby intended to and did deceive; and that the plaintiff had no knowledge to the contrary, and believed they had, and by such action was thrown off his guard and prevented from making inquiry. But that since said work was done and finished under said contract, and the withdrawal of said precept, and the refusal to issue another, he has ascertained that the said part of said street and said lot of Mary E. Noble had not been annexed to and within the limits and jurisdiction of said city of Indianapolis; but he avers that said Market street west of said old corporation line had been, ever since the incorporation of said city, and was, at the time of the passage of said ordinance and letting
After the demurrer to the complaint had been overruled, the appellants filed an answer stating that they were, at the time of the passage of the ordinance and the letting of the contract, members of the common council of the city of Indianapolis, and voted for the passage of said ordinance, and to approve and confirm the letting of said contract to the plaintiff; that they voted for the passage of said ordinance, and to approve and confirm the letting of said contract to the plaintiff, by mistake, and without fraud or intentional wrong, and under a misapprehension as to the locality of so much of said Market street as it was proposed to improve; that they and said plaintiffs, and the owners of the lots or land fronting thereon at the time of the passage of said ordinance and the letting of said contract, and during all the time the plaintiff was engaged in improving said street, under said .contract, believed that that portion of said Market 'Street lying between the old corporation line and Hyland street, was within the corporate limits of said city of Indianapolis; that the plaintiff had like knowledge thereof with these defendants; that these defendants ^cted in the premises in good faith, as members of said common council, without any intention whatever of defrauding the plaintiff.
The action is sought to be maintained upon the theory that the members of the common council, while acting in an official capacity and in voting for an ordinance to grade and gravel a street, and in causing the work to be done, were acting as mere agents, and governed by the same rules and regulations and liable to the same extent as ordinary agents,
It is not alleged in the complaint that the appellant made any representations that the street to be improved was within the city. In fact, the allegation precludes any such presumption. It says, that by the act of passing the ordinance, and the proceedings under it, they held forth, etc., that they had authority and jurisdiction over the street, and that the same and the lot described were within the city limits, when they knew they were not. It is not alleged that they did anything to prevent him from examining the record, or making any other examination or investigation, to ascertain whether the part of the street to be improved and the lot were within the city. The complaint may be regarded as admitting that he made no inquiry on the subject. It says that the action of the common council threw him off his guard and prevented him from making inquiry. It also alleges that that part of the street ordered to be improved was at the time, and had been for fifteen years, a continuation of Market street from the city, called by that name, and used, and he believed the same was a street of said city, and within the limits and jurisdiction of the city and council. The only reason given for not making inquiry was, that they proposed to have the street graded. “ By such action he was thrown off his guard and prevented from making inquiry,” is the averment on that subject.
The territorial limits were fixed and prescribed by public law and public records, open to all. The original charter, in which the limits were defined, was an act of the general assembly. All extension or annexation has been by public proceedings. An examination of such proceedings by the
The contractor made his contract with express reference to the source from which he was to receive payment. Richardson v. City of Brooklyn, 34 Barb. 569; The City of New Albany v. Sweeney, 13 Ind. 245; Johnson v. The Common Council of the City of Indianapolis, 16 Ind. 227.
It is said, however, that if one undertakes to act as the agent for another, bona fide, believing that he has due authority, but in fact has not authority, and therefore acts under an innocent mistake, he is held by law to be equally as reprehensible as if he knew he had no authority. Story on Agency, and other authorities, are relied upon to
One assuming to act as agent for another without authority does not necessarily render himself liable. It is when he knowingly or carelessly assumes to act without being authorized, or conceals the true state of his authority, and falsely leads the party with whom he thus contracts to repose in his authority, that he may be liable. Ogden v. Raymond, 22 Conn. 379; Walker v. The Bank of the State of N. Y., 9 N.Y. 582; Jefts v. York, 10 Cush. 392; and many other authorities. If he enter into the contract in the name and as the agent of another, and does it honestly, fully disclosing all the facts-touching the authority under which he acts, so that the one
If the party contracts as a public officer, and in that capacity acts honestly, he will not ordinarily be personally liable. Belknap v. Reinhart, 2 Wend. 375 ; Hodgson v. Dexter, 1 Cranch, 345 ; Nichols v. Moody, 22 Barb. 611; and cases cited. If his authority to act is defined by public statute, all who contract with him will be presumed to know the extent of his authority, and cannot allege their ignorance as a ground for charging him with acting in excess of such authority, unless he knowingly misled the other party.
The conclusions' which we have announced, we think, are fairly deducible from the authorities.
We are satisfied that the demurrer to the complaint ought to have been sustained, unless the allegation that the appellants knew that the part of the street ordered to be improved was not within the city limits makes it good. That allegation must be considered with others connected with it. The averment as to what was affirmed and declared by the common council by their acts is not the averment of a fact. But after stating, as a conclusion or inference from what they had done, that they affirmed that the street and lot were within the limits and jurisdiction of the city and subject to the control of its common council, it is averred that “ they knew it was not, and thereby intended to and did deceive ; and that the plaintiff had no knowledge to the contrary-
It is difficult for us to determine whether he relied most upon his knowledge of the existence of that street for fifteen years, or the acts of the common council for its improvement.
The answer alleges that the appellants acted as members of the common council; that they acted in good faith, under a misapprehension as to the locality of the part of the street to be improved; that they, the appellee and the owner of the lot believed that it was within the corporate limits of the city; that the appellee had like knowledge with the appellants. The facts alleged in the answer constituted a bar to the action, and the demurrer ought to have been overruled.
The following are some of the authorities not before cited, bearing in a greater or less degree upon the questions involved in the case: Hall v. Lauderdale, 46 N. Y. 70; Creighton v. The City of Toledo, 18 Ohio St. 447; Loudon v. Robertson, 5 Blackf. 276; Port v. Williams, 6 Ind. 219; Boyd v. Doty, 8 Ind. 370; Stackhouse v. The City of Lafayette, 26 Ind. 17; Baker v. The State, 27 Ind. 485; Wilson v. Hunter, 30 Ind. 466; Case v. Bumstead, 24 Ind. 429; Morgan v. Fencher, I Blackf. 10; Clark v. The City of Des Moines, 19 Iowa, 199; Boardman v. Hayne, 29 Iowa, 339; Story Agency, sec. 265; Long v. Colburn, 11 Mass. 97; 1 Parsons Con. 66-67; Angell & Ames Cor., sec. 303; Potts v. Henderson, 2 Ind. 327; M'Henry v. Duffield, 7 Blackf. 41; Feeter v. Heath, 11 Wend. 477; Ballou v. Talbot, 16 Mass. 461; Story Agency, secs. 319-20.
The judgment of said Superior Court of Marion county is reversed, at the costs of the appellee. Cause remanded, with instructions to reverse the judgment of the special term, and to instruct the special term to overrule the demurrer to the appellants’ answer, and proceed in the cause in accordance with this opinion.