Baker Mfg. Co. v. City of Richmond

• Decision Date: 03 December 1917
• Docket Number: No. 12604.,12604.
• Citation: 198 S.W. 1128
• Parties: BAKER MFG. CO. v. CITY OF RICHMOND.
• Court: Missouri Court of Appeals

198 S.W. 1128

BAKER MFG. CO. v. CITY OF RICHMOND.

No. 12604.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Appeal from Circuit Court, Ray County; Frank P. Divelbiss, Judge.

"Not to be officially published."

Action by the Baker Manufacturing Company against the City of Richmond. Judgment for defendant, and plaintiff appeals. Affirmed.

Russell D. Farris, of Richmond, for appellant. Eugene A. Farris and A. M. Clark, both of Richmond, for respondent.

BLAND, J.

This is a suit upon a contract signed by the mayor of the defendant city. In the petition plaintiff seeks to recover the purchase price of a street sweeper sold by the plaintiff to the defendant under said contract and delivered to and used by the latter. The authority under which the city made the contract was an order passed by the city council, which was not signed by the mayor. Under these circumstances it is urged by the defendant that the contract was void, and that consequently there can be no recovery by the plaintiff.

Defendant is a city of the third class, and under section 9226, R. S. 1909, such a city can only pass such an order with the concurrence of the mayor therein. There is no contention here that the ordinance was passed and vetoed by the mayor and that the same was passed over his veto. Under such circumstances the ordinance was void. Eichenlaub v. St. Joseph, 113 Mo. loc. cit. 402, 21 S. W. 8, 18 L. R. A. 590; Kolkmeyer & Co. v. City of Jefferson, 75 Mo. App. loc. cit. 682; Rumsey Mfg. Co. v. Schell City, 21 Mo. App. 175; Bigelow v. City of Springfield, 178 Mo. App. 468, 162 S. W. 750; Mulligan v. Lexington, 126 Mo. App. 721, 105 S. W. 1104.

But plaintiff urges that the contract was ratified by the city, and it is estopped from setting up the void ordinance from the fact that the sweeper was used by the city, though not by ordinance directing its use, and that the council by a valid ordinance paid the salary of the man who drove the same and that the city paid for the grader. The contract was for a street sweeper to cost $550 and a grader to cost $135. The city paid for the grader, and this suit is for the purchase price of the sweeper.

The ordinance being absolutely void, there could have been no ratification or estoppel on the part of the city. Likes v. City of Rolla, 184 Mo. App. 296, 167 S. W. 645; Savage v. City of Springfield, 83 Mo. App. 323; Clay v. City of Mexico, 92 Mo. App. 611; Schell City v. Rumsey, 39 Mo. App. 264. The fact that the council...