17 Ohio C.C. (n.s.) 498 | Ohio Ct. App. | 1913
The record shows that the stone was furnished on four written orders addressed to the Lewis & Talbott Stone Co., three of them for 369 cubic yards of stone at $1.35 per cubic yard, signed by “John Petzer and William B. Thesing, S.S.G. Committee,” and the other for 389 cubic yards signed by “John Petzer, S.S.G. Committee.” No written contract was entered into and signed by the proper village officers, no advertisement for bids was made and no certificate from the village clerk was filed showing the money was in the treasury set apart to meet the proposed expenditure. The stone was delivered and used on the village streets. A partial payment was made on the account, and a question being raised as to payment for the balance claimed, an ordinance was passed by the village council February 18, 1907, “to allow the claim of the Lewis & Talbott Stone Company for material furnished for use on the streets of Pleasant Ridge,” the clerk was directed to issue a warrant against the “first available funds” and the treasurer was directed to pay over such amount to the Lewis & Talbott Stone Company or their attorneys or agents the sum of $1,500 in full settlement of said claim of the Lewis & Talbott Stone Company. No certificate was attached to such ordinance that there was money in the treasury to meet such expenditure.
Plaintiff below, however, relied upon the case of Emmert v. City of Elyria, 74 Ohio St, 185, claiming that bonds were to be issued to raise money to pay for resurfacing the streets and that the stone furnished by plaintiff was used as part of such work. The record fails to support that claim.
Nor can the argument prevail that because the material furnished was actually used by the village it thus became morally bound to pay the claim. Such an argument might be heard in a suit to prevent the village from making such payment if it so desired, but it can not be used in a suit like this at bar where the village is resisting payment in a suit filed to recover the value of the materials. This argument was used unsuccessfully however in the case brought by Castner, a taxpayer, against the village of Pleasant Ridge, to enjoin the pay
The record also fails to show how the plaintiff here became the owner of a claim for materials furnished by the Lewis & Talbott Company.
The judgment below is therefore set aside and judgment will be entered for plaintiff in error.