202 Pa. 182 | Pa. | 1902
In 1890, by proper proceedings the city of Scranton determined to pave Washington avenue with sheet asphalt, and thereupon made a contract with the Trinidad Asphalt Company to put down the pavement. But the contract, in addition to the laying of the pavement according to plans and specifications for work and materials, included this further stipulation : “ Said repairs to include all breaking of pavement for gas, water and sewer purposes, as well as the ordinary wear and tear so far as the city is concerned for a period of five years.” Before the expiration of five years, the pavement, apparently being of poor quality, became broken and in places impassable. The defendant was a lot owner fronting on the street whereon the new pavement was laid and had joined with others in the petition to councils to adopt and construct the asphalt pavement. The ordinance under which the contract was made provided, that abutting property owners should be assessed, not only for the original cost of the pavement, but for repairs thereto within the five years. The defendant paid his assessment of the original cost but refused to pay for repairs ; before the expiration of the five years, the city for the benefit of the contractor brought this suit in assumpsit against defendant to recover his ratable portion of -the cost of those repairs.
The first question is, will assumpsit lie for such a claim even if it be well founded on a legal demand ? No such remedy is given by the act of May 23, 1889, as argued. That act by any fair interpretation, bases the right of recovery on a lien filed; scire facias thereon will result in a general judgment by the terms of the act, but a general judgment cannot be obtained on an unregistered claim by the common-law action of assumpsit. And so we held in McKeesport Boro. v. Fiddler, 147 Pa. 532, “An assessment by a municipality for paving a street is a tax and cannot be collected as an ordinary debt by a common-law action unless such remedy is given by statute. . . . There can be no recovery in assumpsit for an assessment without clear legislative authority.”
But besides this fatal objection to the form of action, the
