Brownell v. City of St. Petersburg, Fla.

• Citation: 128 F.2d 721
• Decision Date: 02 June 1942
• Docket Number: No. 10100.,10100.
• Parties: BROWNELL v. CITY OF ST. PETERSBURG, FLA.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

128 F.2d 721 (1942)

BROWNELL v. CITY OF ST. PETERSBURG, FLA.

No. 10100.

Circuit Court of Appeals, Fifth Circuit.

June 2, 1942.

J. Carl Lambdin, of St. Petersburg, Fla., for appellant.

Carroll R. Runyon and Harry I. Young, both of St. Petersburg, Fla., for appellee.

Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was to recover a total sum of $8,304 deposited with defendant on July 25, 1925, $5,708 for the purpose of making extensions to water main, and $2,596 for the purpose of making extensions to gas mains, to be laid in the streets of an addition being laid out by plaintiff, with a covering agreement for their return to plaintiff within in one to three years from that date.

The claim was that though plaintiff had advanced the moneys at defendant's request and upon the agreement aforesaid, and the defendant had expended them for making extensions to its gas and water systems in the public streets of the city, it had refused to repay said sums in accordance with its agreement and was liable to plaintiff on the contract for said sums or as for moneys had and received.

Defending that it was never indebted and that it never promised as alleged, defendant also filed pleas: (1) Denying the power and authority of the director of public utilities, with whom plaintiff had dealt, to make a contract binding on the city for the return of the moneys; (2) denying that plaintiff's money was spent for the use of the city and that the city received any benefit from its expenditure; and (3) urging the statutes of limitations, of three, four, and five years. Comp.Gen.Laws, Fla., 1927, § 4663, subds. 3, 4, 5.

To the defenses on the merits that the contract was violative of charter prohibitions and no recovery could therefore be had, either on it or for moneys had and received, appellant replies, (1) that the contract for loan of the money was not invalid, (2) that if invalid it was so not because in contravention of prohibitions in the charter but only because it failed to comply with required forms, and (3) that this being so and his money having been expended for city improvements, he was entitled to have it back as money had and received by the city. To the defense of limitations appellant replies that whether his suit be regarded as on the contract, or for moneys had and received, it was brought in time. For, it was brought March 24, 1931, and his cause of action did not accrue, if on the contract, until July 25, 1928, three years after the payment of the money, and if for moneys had and received, until September 21, 1928, the day the city declined payment.

Tried to the judge without a jury, there were findings: (1) That the plaintiff had no valid contract with the city for the return of the money advanced; (2) that it was advanced for the benefit of plaintiff's property, and the city derived no benefit from its expenditure; (3) that plaintiff could recover neither on the contract nor for moneys had and received; and (4) that if plaintiff had ever been entitled to recover on the implied promise, limitation had begun to run on it from the time of the advancement of the money and had barred the suit.

Appellant is here insisting that the contract he made was a valid one and he is entitled to recover on it. He insists further that if mistaken in this, his suit, under settled Florida law, is a suit for money had and received on which limitation did not commence to run until the city had repudiated, and refused to pay under, the express contract. The facts are quite simple and without dispute. Appellant, the owner of a tract of land in the city which he was about to develop as residential property, applied to the director of utilities for extension into and through it, of the city's system of water and gas mains. Advised by the director that the city was not in funds but that if he would advance the city the money, the city, as it had done under a practice of many years standing, in the course of which more than 300 such advances had been made, would lay the mains and would repay him within one to three years, the moneys advanced to it, appellant advanced the money. The city laid the mains as part of its gas and water systems and has since maintained them as such, appellant having never had anything to do with either their laying, their maintenance, or their use. The three years fixed in the agreement having elapsed without payment and defendant having demanded payment, the city for the first time questioned its liability and declined to pay. This suit followed in less than three years. At the time the mains were applied for, plaintiff had four houses in process of building, and both he and the director of utilities expected that a considerable building movement would follow with benefits as well to plaintiff as to the city. The Florida boom however, collapsed, no other houses were built and neither the plaintiff nor the city has derived the substantial benefits from the addition that they both anticipated. At all times however, the mains have been, they are, an integrated part of the city's gas and water systems to the same extent as all other parts of it are. Appellant had nothing to do with letting the contracts for or the laying of the mains, has had, nothing to do with their maintenance, none of the receipts from their use. At no time has he had or made any claim to them. At no time has the city recognized appellant as making or having any claim to or interest in them.

While because appellant can point to no provision of the charter expressly authorizing the director of public utilities to borrow money and obligate the city to repayment, as was attempted to be done here, we cannot agree with appellant that he can recover on his contract, we do agree with him that the contract was not prohibited by the charter and that the money having been borrowed and properly expended for a lawful purpose, the city is liable for it upon quantum meruit, as for money had and received. McQuillin Municipal Corporations, Vol. 5, Sec. 2092; Elliott on Contracts, Vol. 2, Sec. 1377; Logan v. Board, 118 Fla. 184, 158 So. 720, 725; Hillsborough County v. Highway Engineering & C. Co., Fla., 199 So. 499; Town of Boca...