11 Wash. 41 | Wash. | 1895
The opinion of the court was delivered by
This is an action brought on four street grade warrants of the city of Spokane, for $500 each, and interest thereon, issued April 12, 1889, and drawn on the Mallon street fund. In 1888 the city of Spokane duly passed an ordinance for the grading of Mallon street, and let the contract for the grading thereof to one V. M. Massey, who, in April, 1889, finished the same according to the plans and specifications, and the same was thereupon accepted by the city as a full performance of the contract. This ordinance is pleaded in the complaint. The contract entered into between Massey and the city is also pleaded, which contract provided, among other things, that, if any payments upon said contract became due and payable and the said fund had not been recovered, the city would issue its warrants or certificates of indebtedness redeemable within one year. That, in pursuance of said contract, the city issued, among others, its four certain warrants
Sec. 3 of the charter of 1886 (Laws 1885-6, p. 301) granted the power in general terms to the city to assess, levy and collect taxes for general municipal purposes, and § 7 provides that the city—
“Shall have power to construct and repair sidewalks, and to curb, pave, grade, plank, macadamize and gutter any street or streets, highway or highways, alley or alleys therein, or any part thereof; and to levy and collect a special tax or assessment on all lots or parcels of land fronting on such street or streets, highway or highways, or any part thereof, sufficient
Sec. 8 provides that —
“ The city of Spokane Falls has power to provide for clearing, opening, graveling, improving, repairing and clearing streets, alleys and highways, and for the prevention and removal of all obstructions therefrom.”
In the case of Soule v. Seattle, 6 Wash. 315 (33 Pac. 384), this court held, in construing similar charter provisions, that the city was not limited to special assessments as a means of improving its streets in any way it saw fit. On that proposition we think the decision in that case is conclusive of the question raised in this case as to the power of the city to pay for these improvements, and we pass that phase of the case without further comment.
The brief of the respondent charges the appellant with making a misstatement in his opening brief, in alleging that the city has never taken any steps whatever towards creating a fund to be known as the Mallon street fund, and has never paid, and now refuses to pay, to plaintiff the amount of these warrants, claiming that it has no authority or power to pay the same from any other fund than the Mallon street fund, which, as before stated, has never existed, and which the city has never taken any steps to create; and counsel proceeds to show that the city has taken other steps, by passing ordinances, etc. But this case comes here upon the allegations of the complaint, and we hardly see how these evidenciary matters which are argued by the counsel for the respondent can be taken into consideration. If the allegations of the complaint are not true, that is a matter of defense; but for the purposes of this demurrer they must be considered as true, and the allegation is that the city of Spokane has wholly
There are two technical points, however, raised by the respondent which we will notice here. The first is that the contract must be alleged to have been in writing because, under the ordinance of 1889, a contract to be binding must be reduced to writing and signed by the mayor and city clerk on behalf of the city; and Arnott v. Spokane, 6 Wash. 442 (33 Pac. 1063), is cited to sustain this objection to the complaint. We think this case is not in point. In that case we decided that the city could not- be rendered liable by the verbal agreement of the mayor and the council to pay certain sums exceeding $50, and the case was reversed because the court admitted testimony which went to show a verbal contract. But the question is here, is a written contract admissible in evidence under a general allegation that the parties contracted, without indicating whether the contract was in writing or not. This question was squarely de
“ It is said by'the counsel for the plaintiff, that the court below held the complaint insufficient because it did not show that the agreement was in writing. If that was the view of the learned circuit court it was unsound. The complaint states the agreement to convey in general terms, and it must be presumed that it was a valid agreement. Certainly the contrary presumption cannot be made because the complaint states generally the agreement. It was not necessary to allege that it was in writing. The law upon this point is well settled. It is true, the answer alleges that the agreement to convey was not in writing, but we do not see that that can affect the question as to the sufficiency of the complaint.”
In this case the complaint being assailed by a demurrer, under that authority, the complaint states a cause of action and an allegation is made which will sustain proof of a written contract.
To the same effect are Hamilton v. Lau, 24 Neb. 59 (37 N. W. 688), and Higgins v. McDonnell, 16 Gray, 386. In the latter case it was held that a written contract may in general be given in evidence in support of a declaration on a contract not alleged to be in writing. See, also, Tuttle v. Hannegan, 54 N. Y. 686.
The remaining contention is that it was necessary to allege the proceedings of the city council by virtue of which Tull, who signed the warrants, became acting mayor. This also, we think, is a matter of evidence
Dillon on Municipal Corporations (4th ed.), § 502, states the rule thus :
“ County and city orders signed by the proper officers are prima facie binding and legal. These officers will be presumed to have done their duty. Such orders make a prima facie cause of action. Impeachment must come from the defendant; ” citing many cases to sustain the text.
And such is the undisputed weight of authority. We think the complaint is in all respects sufficient to place the city on its defense.
The judgment will therefore be reversed.
Anders, Soott and Gordon, JJ., concur.
Hoyt, C. J., dissents.