Cade v. City Of Belington.

• Decision Date: 01 October 1918
• Citation: 82 W.Va. 613
• Court: West Virginia Supreme Court
• Parties: J. Warren Cade v. City of Belington.

82 W.Va. 613

J. Warren Cade

v.City of Belington.

Supreme Court of Appeals of West Virginia.

Submitted September 24, 1918.

Decided October 1, 1918.

1. Municipal Corporations Contracts Action by Council.

As a general rule, a municipal corporation is not bound by a contract made without corporate action by the council, duly assembled, manifested by an order entered of record in the minute book containing a notation of its proceedings. (p. 613).

2. Same Implied Contracts Knowledge of Council Validity.

But if the municipality has power to contract therefor by express contract, and the contract is not against public policy, and there are no statutory or charter provisions limiting the mode of execution of a like express contract, it will be liable on an implied contract where, with the knowledge and consent, express or implied, of the members of the council, it has received benefits rendered at the instance and request of its duly authorized agents acting for and on its behalf, either in the absence of any contract or where the express contract is invalid because of mere irregularities. (p. 617).

Error to Circuit Court, Barbour County. Action by J. Warren Cade against the City of Belington. Judgment for defendant, and plaintiff brings error.

Reversed and remanded.

C. 31. M Murphy, for plaintiff in error.

A. M. Cunningham, for defendant in error.

Lynch, Judge:

By this writ to a judgment pronounced by the circuit court upon a verdict directed for defendant in an action brought before a justice to recover the value of services rendered by plaintiff in guarding smallpox patients resident within the defendant city, it is only necessary to say whether the evidence is sufficient to sustain a verdict for plaintiff, had one been rendered in. his favor.

There was no order of the city council and no express contract authorized by the council or by its positive direction employing plaintiff to perform the services' for which he sues,. He was engaged and directed to act as a watchman to avoid the spread of the contagion or infection among other residents of the municipality. That he performed the work he was directed to do and that the account was reasonable seems to be established by the proof introduced upon the trial. Apparently the result of the trial was due to the conception that without corporate action by the council duly assembled, manifested by an order entered of record in the minute book containing a notation of its proceedings, no liability devolved upon the city. The observance of that requirement, as a general rule, is a prerequisite of a valid contract binding the municipal corporation. But it is not universally and exclusively operative and preclusive of the right to recover where services are performed for the corporation or goods furnished to it at the instance and request of its duly authorized agents acting for and on its behalf. In that event the law may afford relief upon an implied contract and promise for reimbursement.

Such an implication was enforced in Boise Water Co. v. Boise City, 230 U. S. 84, 96. The franchise granted by the defendant required plaintiff to furnish without charge water at the hydrants for use in case of fire. Later the free use provision was eliminated by a general law applicable alike to all municipalities within the state and allowing water companies to charge reasonable rates for such use. Sometime afterwards the municipal corporate authorities entered an order declining to pay after the date of the order the rate agreed upon between commissioners representing it and the city authorities, or any compensation for the use of the hydrant water furnished after that date with the knowledge and upon the acceptance of the officers and agents of the corporation, and the water company was allowed to recover. 3 McQuillan, Municipal Corporations, sec. 1262, page 2749. says: "Thus if the municipality has power to contract therefor by express contract, and the contract is not against public policy, and there are no statutory or charter provisions limiting the mode of execution of a like express contract, it will be liable on an implied contract where it has received benefits, either in the absence of any contract or where the ex- press contract is invalid because of mere irregularities." In Kramrath. Albany, 127 N. Y. 575, the defendant was held liable on a quantum meruit where it enjoyed the benefit of the work performed, notwithstanding the absence of any formal contract. Where a contract within the power of a municipal corporation is set aside for irregularities, there may be recovery as on a quantum meruit against such corporation for work and materials furnished under such contract before legal attack. Wentink v. The Board etc. of Passaic County,. 66 N. J. L. 65.

The same liability arises where public printing is done for a city after the expiration of the contract therefor and without a new agreement, but under each separate order given by the city authorities. People ex rel. Hausauer-Jones Print- ing Co. v. Zimmerman, 109 N. Y. Supp. 396. See also Miles. v. Holt County, 86 Neb. 238. Likewise where a contract was. invalid because made at a special meeting of the common council without legal notice to all the members, but it appeared to the court to be fail and reasonable and within the scope of the corporate powers, and the other party had completed the work and defendant accepted the benefits. Land Co. v. Jellico, 103 Tenn. 320. In a Vermont case, District of Hardwick v. District of Walcott, 78 Vt. 23, it is said in effect that no stronger proof is required to establish an implied contract to bind a municipality than to bind an individual. To the same effect are Austin v. Bartholomew, 107 Fed. 349, 355; Brush Electric Light Co. v. Montgomery, 114 Ala. 435; Howell Electric Light Co. v. Howell, 132 Mich. 117; Tucker v. Virginia, 4 Nev. 20. Thus it seems that whenever the corporation may bind itself by an express contract, it may also bind itself...