Barber Asphalt Paving Co. v. City of Denver

• Decision Date: 06 January 1896
• Docket Number: 655.
• Citation: 72 F. 336
• Parties: BARBER ASPHALT PAVING CO. v. CITY OF DENVER.
• Court: U.S. Court of Appeals — Eighth Circuit

72 F. 336

BARBER ASPHALT PAVING CO. v. CITY OF DENVER.

No. 655.

United States Court of Appeals, Eighth Circuit.

January 6, 1896

The Barber Asphalt Paving Company (a corporation, and the plaintiff in error) brought an action in the court below against the defendant in error, the city of Denver, a municipal corporation, to recover a balance which it alleged that the city owed it for the performance of four contracts that it had made with the city to grade and pave with sheet asphalt portions of four of its streets. The complaint set forth four separate causes of action,-- one upon each of the contracts. The statement of each cause of action presents the same questions for consideration here, and for that reason but one of them will be considered. The facts alleged in the complaint as a basis for the cause of action were these: The charter of the city of Denver gave it the general power to grade, curb, and pave its streets. The railway companies using the streets had made a contract with the city, in consideration of a license granted to them by it to use these streets, to bring the streets to the official grade, and to pave them between their tracks, and for two feet upon each side of them, in a manner directed by the city. The charter also gave the city the power to assess two-thirds of the total expense of grading and paving any street, excluding the intersection of streets and alleys, upon the property abutting upon the improvement whenever the owners of a majority of the lots fronting on the same petitioned for it. On March 13, 1892, the city determined to grade and pave a portion of Arapahoe street and passed an ordinance for that purpose, which provided that the street-railway companies occupying the street at the time of making the improvement should pay such parts of the cost of paving as were provided by the ordinances granting them rights of way on the street; that, after making allowance for the sums so to be paid by the railway companies, the city's proportion of the cost of the improvement should be one-third of the cost of grading, curbing, and paving in front of the lots abutting the improvement, and the entire cost of grading, curbing, and paving the intersection of the streets and alleys; and that the remainder of the cost should be borne by the owners of lots abutting upon the improvement. Certain railway companies took possession of and occupied this street with double tracks while the improvement was being made, under an ordinance of the city which gave them license so to do, and provided that the companies 'shall pave or plank the same between its rails and two feet on the outside of each rail even with the track whenever the city orders such streets to be paved, and in such manner as the city council may require. ' The ordinance which provided that the improvement should be made also provided for levying the assessment upon the abutting lots, and appropriated out of the fund to be raised by that assessment $30,911.67, to pay the warrants of the city, which the ordinance provided should be issued against this amount; and it appropriated $15,448.34, not out of the general funds raised by taxation to pay the current expenses of the city, but out of special fund, realized, or to be realized, by the sale of bonds of the city, which the board of public works of the city had authority to issue, and to apply the proceeds of, for the purpose of paving grading, and curbing streets, and making other like improvements, in the city of Denver. The ordinance specified that this $15,448.34 was appropriated to pay the city's proportion of the expense of the improvement. After the passage of this ordinance the board of public works advertised for bids for grading and paving this street. The plaintiff in error made a bid that was accepted, and the city made a contract with it in accordance with the bid. The contract was that the plaintiff in error should furnish all the labor and materials required to make the improvements, at prices specified in the contract, and that upon the completion of the work there should be paid to it, in the manner provided by the ordinance, the sum which the labor and materials amounted to, at the prices specified in the contract. The plaintiff in error performed the contract to the satisfaction of the city. The cost of the improvement, at the prices fixed by the contract was $38,094.05; and the city has paid $33,924.89, but refuses to pay the remaining $4,169.16. The amount unpaid is the cost of grading, paving and improving that part of the street between the railroad tracks and within two feet outside of the rails. The paving company requested the city to collect this amount of the railway companies that occupied the street, and pay it over to the paving company; but the city refused to do so, and, after demand, refused to pay the amount itself. To this statement of a cause of action, the city demurred on the ground that it disclosed 'upon its face that the city of Denver was not, under any conditions to be liable for paving between the rails, and for two feet on the outside of the rails of the street railway, * * * but that said street railway was to be liable therefor to the plaintiff, and plaintiff was, under the contract sued on, to look to said street railway for payment for such paving. ' The court below sustained the demurrer, and dismissed the action. The writ of error was sued out to reverse this judgment.

Charles W. Waterman (Edward O. Wolcott and Joel F. Vaile were with him on the brief), for plaintiff in error.

George Q. Richmond (F. A. Williams was with him on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

One who induces a contractor to perform labor or furnish materials by the promise that a third person, who, he claims, owes him a debt or duty, shall pay to the contractor the agreed price of the labor and materials he furnishes, cannot enjoy the fruits of the contract, and leave the contractor remediless, either because his debtor does not pay, or because the debt or duty did not exist. In either event he becomes primarily liable to pay the contract price himself. White v. Snell, 5 Pick. 425; City of Chicago v. People, 56 Ill. 327, 333; Bucroft v. City of Council Bluffs, 63 Iowa, 646, 650, 19 N.W. 807; Cronan v. Municipality No. One, 5 La.Ann. 537.

Stripped of its verbiage, this is the first cause of action disclosed in this complaint: The city of Denver agreed with the Barber Asphalt Paving Company that, if the latter would lay this pavement, it should be paid $38,094.05 therefor, in this way: A certain portion of this sum should be paid in cash, obtained or to be obtained from the sale of the bonds of the city of Denver; $4,169.16 of it should be paid by the street-railway companies which had contracted to pave part of this street at the time and in the manner in which the city directed; and the balance should be paid from moneys to be realized from an assessment to be levied upon the property abutting upon the improvement. The plaintiff in error has paved the street, and the city has received all the benefits of a full performance of the contract. The city has discharged the obligation imposed upon it by the contract, with this exception; that it has not caused, or attempted to cause, the street-railway companies to pay the paving company the $4,169.16 which it contracted that they should pay to it; and it refuses to pay this amount itself, or to take any steps to cause the railway company to pay it. Why is this not a good cause of action? If the city had failed to issue its bonds, or to pay that part of the price of this improvement which it promised to pay from their proceeds, an action could have been immediately maintained to recover it. If it had failed to levy the assessment upon the lots abutting upon the improvement, or if it had been without the power to make that levy, and it had thus failed to cause that part of the price to be paid by the owners of those lots, the paving company could have recovered it by a direct action against the city. It is not perceived why its liability for that part of the price which it contracted that the railway companies should pay is less direct, primary, or absolute. It is no answer to this proposition to say that, while the city contracted that the railway companies should pay this $4,169.16, it did not, before the contract was let, provide, by ordinance or otherwise, any method by which the railway companies should be compelled to pay it. It is no defense to an action for the breach of a contract that the party in fault did not make adequate provision for its performance. In Bucroft v. City of Council Bluffs, 63 Iowa, 646, 650, 19 N.W. 807,-- a case in which the city had agreed to pay for certain improvements out of a fund to be raised by the levy of assessments upon abutting property, and in which the property owners refused to pay, and the city was without power to enforce payment,-- the supreme court of Iowa said:

'It may be said that the defendant did not, in terms, agree to pay, but it contracted, and the work was done for a compensation fixed by the city, and to its satisfaction, under an assumed power that the expense could be assessed as a charge on the abutting owner; and, in substance, both parties contemplated that payment should be made in a certain manner, or out of a designated fund. The plaintiff cannot be so paid. The defendant had no claim nor demand against the abutting owner, nor the power to create the fund, and yet it contracted that it had. * * * Now, when it turns out that there was no such fund, and that the power to create it did not exist, it seems to us that the city should not and cannot escape

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