City of Conyers v. Kirk & Co.

• Decision Date: 15 April 1887
• Citation: 3 S.E. 442,78 Ga. 480
• Parties: CITY OF CONYERS v. KIRK and others.
• Court: Georgia Supreme Court

3 S.E. 442

78 Ga. 480

CITY OF CONYERS v. KIRK and others.

Supreme Court of Georgia

April 15, 1887

Syllabus by the Court.

A municipal corporation can make a cash contract for current supplies, such as lamps and gasoline for lighting the streets, through its appropriate officers or committees, as effectually as by formal order or resolution entered on its minutes.

Such a contract, if not authorized or confirmed in the mode commonly practiced, may become obligatory by implied ratification, as by taking the fruits of the contract and enjoying them for a considerable time, without notice of objection.

The facts of this case, taken most strongly in favor of the prevailing party, as they must be after verdict, do not show any purpose or intention to create a debt. The debt resulted from a breach of the contract; not from the making of it. Against paying a debt so originating there is no constitutional impediment.

That the book of minutes of the corporation was excluded as evidence will not warrant a new trial; the facts which they were offered to prove having been established by other testimony.

That on polling the jury, some of them, after answering that the verdict was their verdict, added that they hesitated to agree to it, and had given their assent reluctantly and with doubt will not vitiate the finding.

Error from superior court, Rockdale county; BOYNTON, Judge.

Geo. W. Gleaton and A. M. Helms, for plaintiff in error.

J. N Glenn, for defendants.

BLECKLEY C.J.

This is a light case. The city of Conyers was lighted with kerosene. It had a street committee, consisting of two members, who arranged with Kirk & Co. to supply lamps to consume gasoline, instead of kerosene; and also a barrel of gasoline to be used in the lamps. There were 6 lamps, costing $8 each, and the gasoline cost something less than $10; the whole bill amounted to about $57 or $58. These lamps were put up. The marshal took charge of them, and kept them lighted. They were used for a month, and until the supply of gasoline was exhausted. Shortly after that time, the city council met, deliberated upon the question, and passed a resolution declaring that they rejected the lamps, and directing the mayor to give notice to Kirk & Co. to that effect. The notice was given, either afterwards or before, (I rather think, from the record, that it was given the day before.) Kirk & Co. brought suit, and were met with two defenses,--one, that the lamps and illuminating material had not been bought by the city; and the other, that, if bought, they did not perform up to warranty. To these pleas an allegation was added that the lamps had been tendered back; but the defenses were (1) that no purchase had been made; and (2) that, if made, there was a breach by the plaintiffs, and the consideration had therefore failed.

1. It is argued that the city could not make any contract through the street committee, or the chairman of that committee, who was the chief actor in the matter; that the regular system of contracting was to have matters examined by committees, and reported to council in assembled meeting, and there determined in a formal way, and entered upon the minutes. It is insisted that these committee men were not the agents of the city for making this contract, if they made any, and therefore the city is not bound by it. A municipal corporation can make a cash contract for current supplies such as lamps and gasoline for lighting the streets, through its appropriate officers or committees, as effectually as by...