Foster v. City of Alton

• Decision Date: 18 June 1898
• Citation: 51 N.E. 76,173 Ill. 587
• Parties: FOSTER v. CITY OF ALTON.
• Court: Illinois Supreme Court

173 Ill. 587

51 N.E. 76

FOSTER

v.CITY OF ALTON.

Supreme Court of Illinois.

June 18, 1898.

Appeal from appellate court, Fourth district.

Action by Alfred F. Foster, for use of Alton Stoneware Pipe Company, against the city of Alton. From a decision of the appellate court (74 Ill. App. 511) reversing a judgment for plaintiff, he appeals. Affirmed.

Levi Davis, for appellant.

Henry S. Baker, Corp. Counsel, for City of Alton.

CARTWRIGHT, J.

Appellant recovered judgment in the circuit court of Madison county against appellee for $1,245.95 for furnishing materials and doing the work in the construction of a sewer in pursuance of an ordinance of the city and a contract between the parties. The ordinance, which was set out in the declaration, provided for making the improvement and letting the contract, and section 7 was as follows: ‘Said contract shall contain, among other things, a covenant in substance to the effect that the contractor or contractors shall have no lien upon the city, in any event, over and above the amount hereinbefore provided to be raised for said improvement by general taxation, if any, except from the collection of the special assessment ordered to be levied, assessed and collected by the city council for said improvement.’ The declaration also contained a copy of the contract between plaintiff, as party of the first part, and defendant, as party of the second part, which includes the following stipulation: ‘The said party of the first part further agrees to make no claim against the city in any event, except for the city's share of the cost of the sewer as above specified, and from the collection of the special assessments ordered to be collected for said improvements, and agrees to take all risks of the invalidity of said special assessments. The city shall in no event be liable by reason of the invalidity of said special assessments, or of the proceedings therein, or for a failure to collect the same: provided, however, that in case said assessments, for any cause whatever, be declared invalid and void, the city hereby agrees to make a new assessment to pay for said improvements, and all excess of said actual cost of said improvements shall be rebated to the property owners.’

The plaintiff alleged that the cost of the sewer was $2,890.65; that defendant instituted a special assessment proceeding, and collected and paid to him $1,645; that the owners of certain pieces of property assessed filed objections to the assessment, which were sustained; that this court affirmed the judgment of the county court for the reason that the ordinance providing for the improvement failed to describe it; and that there was a balance of $1,245.65 uncollected and still due and unpaid to plaintiff on account of the sewer. A jury was waived, and the cause was submitted upon an agreed statement of facts, in which it was stipulated that the averments of fact in the declaration were true, and that on February 11, 1896, the plaintiff presented a petition to the city council of defendant praying for the passage of an ordinance for a new and valid special assessment to collect the balance due, which petition the city council granted and directed the ordinance committee to prepare, and report such an ordinance to the next meeting of the city council, but prior to such next meeting plaintiff commenced this suit, March 6, 1896. The court held, on propositions of law submitted by the plaintiff, that it was impossible for defendant to provide any valid special assessment to pay for the improvement, and that it was therefore liable for the balance unpaid, and refused to hold, at the request of defendant, that it had power to levy a new and valid assessment. The appellate court reversed the judgment, and entered the following finding of facts as a part of the judgment: ‘Appellant passed an ordinance for the construction of a sewer, to be paid for by special assessment, and contracted with appellee to build the sewer, he to be paid from the special assessment and to take all risk of the invalidity of the assessment. Appellant agreed that, in case the original assessment was for any reason declared to be invalid, it would cause a reassessment to be made. Appellee completed the sewer according to...