113 P. 655 | Or. | 1911
delivered the opinion of the court.
In this State it is now the settled law that where the expense of improving a city street is to be paid from a special fund, created by assessment on abutting property, a failure of the municipality to comply with any of the requirements of the charter essential to supplying such fund, or an unreasonable delay in enforcing such provision, or collecting and paying over the money, gives the contractor a right of action ex delicto against the corporation for damages, in which he is entitled to recover the amount due under the contract with interest, notwithstanding a provision therein that he shall look for payment only to the special fund, and will not require the municipality by any legal process or otherwise, to pay the same out of any other fund: Northern Pac. Lumber Co. v. East Portland, 14 Or. 3, 8 (12 Pac. 4); Portland L. & M. Co. v. City of East Portland, 18 Or. 21 (22 Pac. 536: 6 L. R. A. 290); Commercial National Bank v. Portland, 24 Or. 188 (33 Pac. 532: 41 Am. St. Rep. 854); Little v. City of Portland, 26 Or. 235 (37 Pac. 911); Jones v. City of Portland, 35 Or. 512 (58 Pac. 657).
In Northern Pacific Lumber Co. v. East Portland, 14 Or. 3, 8 (12 Pac. 4), where the work was completed August 15, 1884, and, before its acceptance, action was commenced, September 26th of the same year, it was held that it was the duty of the common council to have approved or disapproved thereof during the intervening time; that the law will not permit the capricious withholding of approval in order to avoid the payment of a just claim. As applied to the contract between plaintiff and defendant it is within the contemplation of the law that, in procuring the funds with which to meet the obligation incurred, pursuant to the city charter, ordinance, and the agreement set out and referred to in plaintiff’s complaint, the city must exercise reasonable diligence in making the assessment and collecting the same, in order to prevent liability attaching for the liquidation of the debt out of other funds. In effect if the defendant has not been negligent, and has tolerated no unreasonable delay in proceeding in the matter, it is not liable for damages. Under its charter the city had full control of the proceedings to be taken for securing the fund; not the plaintiff, who when he had finished the labor in accordance with his contract, and the same had been accepted, had done all that was required of him: Jones v. City of Portland, 35 Or. 512 (58 Pac. 657).
The judgment of the lower court is therefore reversed, and the cause remanded with directions to overrule the demurrer, and for such other proceedings as may be proper, not inconsistent with this opinion.
Reversed.