Donna v. City of Auburn

• Decision Date: 24 December 1952
• Citation: 148 Me. 356,93 A.2d 484
• Parties: DONNA et al. v. CITY OF AUBURN et al.
• Court: Maine Supreme Court

Page 484

93 A.2d 484

148 Me. 356

DONNA et al. v. CITY OF AUBURN et al.

Supreme Judicial Court of Maine.

Dec. 24, 1952.

John A. Platz, Lewiston, for plaintiffs.

Frank W. Linnell, Cole & Trumble, pro se, Auburn, for defendants.

Before MURCHIE, C. J., and FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

MERRILL, Justice.

On exceptions. This is a taxpayers' bill brought to restrain the payment of money upon a contract alleged to have been executed by the City Manager of the City of Auburn pursuant to an Order of the City Council. The bill purports to be brought under authority of R.S.1944, c. 95, § 4, par. XIII. The plaintiffs claim that the contract is not binding upon the city because of lack of authority on the part of the City Manager to execute the same. The City Manager executed the contract pursuant to an Order of the City Council. Plaintiffs claim that under the charter of the City of Auburn, authority to execute the contract could be conferred only by an Ordinance, as distinguished from an Order. After filing, the bill was amended. Answer with demurrer therein was filed. The case was heard upon the demurrer to the bill as amended. Decree was filed sustaining the demurrer and ordering that the bill be dismissed without costs. It is upon the plaintiffs' exceptions to this decree that the case is now before us.

The amended bill is fatally defective. With respect to the existence of facts clearly material and essential to the maintenance of the bill, it alleges merely that the plaintiffs are informed and believe the facts. Whitehouse in his Equity Practice, First Edition, Page 243, Sec. 208, states:

'Whatever is essential to the plaintiff's case and is within his knowledge and belief must be alleged positively as a fact. Where the bill alleges merely that the plaintiffs are informed and believe the facts set out in that clause of the bill, it is fatally defective. It does not allege the facts upon information and belief, it alleges information and belief of the facts only.'

The foregoing statement by Whitehouse is well sustained by the decisions of this Court. In Messer v. Storer, 79 Me. 512, at page 519, 11 A. 275, at page 277, we said:

'It does not allege the facts upon information and belief. It alleges information and brlief of the facts only. Such an allegation in equity is insufficient to raise the issue sought to be raised.'

In the case of Bailey v. Worster, 103 Me. 170, at page 174, 68 A. 698, at page 700, as to many essential charges the plaintiff merely stated that he 'is informed and believes'. The Court after holding that such a form of charging was fatally defective, went on to hold that a failure to traverse such allegation was not an admission under Equity Rule 27 of the truth of the facts referred to in such allegation. In that case we said:

'Chancery rule 27 provides that 'all allegations of fact well pleaded in bill answer, or plea, when not traversed, shall be taken as true.' The difficulty, however, is that the allegations to which these defective answers were made were not well pleaded. The complainant did not allege facts; but only that he was informed and believed certain allegations. In such cases chancery rule 27 does not apply.'

In the case of Darling Automobile Co. v. Hall, 135 Me. 382, 197 A. 558, after reiterating the rule, and citing Messer v. Storer, supra, Bailey v. Worster, supra, Whitehouse Equity Practice, supra, and the case of Robinson v. Robinson, 73 Me. 170, 177, ...