Gates v. City of Toledo

• Decision Date: 23 November 1897
• Parties: GATES et al. v. CITY OF TOLEDO. GOULDEN v. SAME.
• Court: Ohio Supreme Court

48 N.E. 500

57 Ohio St. 105

GATES et al. v. CITY OF TOLEDO.

GOULDEN v. SAME.

Supreme Court of Ohio.

November 23, 1897

Error to circuit court, Lucas county.

Two actions commenced in the court of common pleas,-one by Frank Gates and Neil Hueston against the city of Toledo, and the other by Michael M. Goulden against the same defendant. There was a judgment of the circuit court in the first action affirming a judgment sustaining a demurrer to the petition and plaintiffs bring error. Affirmed. There was a judgment of the circuit court in the second action reversing in part and affirming in part a judgment in favor of plaintiff, and plaintiff brings error. Affirmed.

Frank Gates and Neil Hueston constructed a public sewer for the city of Toledo, and took in payment therefor, as per previous contract, an assignment of certain assessments upon lots and lands claimed to be benefited by the improvement. It was stipulated in their contract with the city that the assessments so to be assigned should be valid assessments. All the steps taken by the city authorities in providing for the sewer, and in awarding the contract to Gates &amp Hueston, were, in form, regular, and in accordance with statute. In a suit prosecuted to final judgment by Gates & Hueston against persons whose property was assessed and who refused to pay, it was decided and adjudged that some of the assessments were valid; and, as to them, Gates &amp Hueston recovered judgment. A part were held invalid, because, as to some, the property had already been provided with local drainage, and, as to others, the sewer did not provide drainage; and, as to all such, Gates & Hueston failed in their action. As to still others, the assessments were excessive. In those instances, Gates & Hueston partially failed in their action. One-half the costs were adjudged against them. They expended in attorney's fees, $1,300.65; for abstract of title to property in suit, $65; and paid one-half the costs, $46.37,-in all, $1,412.02. Their action against the city was to recover these sums. To a petition setting up the foregoing and other pertinent facts, a demurrer was sustained by the common pleas, and judgment given against plaintiffs, which was affirmed by the circuit court. Michael M. Goulden constructed a sidewalk for the city of Toledo, and took in payment, as per previous contract, an assignment of an assessment upon the property abutting. It was stipulated in the contract that the assessment so to be assigned should be a valid assessment. All the steps taken by the city authorities in providing for the building of the walk, and in awarding the contract to Goulden, were regular, save that no notice of the proposed improvement was given the owner of the abutting property. In a suit prosecuted to final judgment by Goulden against the person upon whose property the assessment was made, it was decided and adjudged that the assessment was invalid for want of notice, and on that ground Goulden failed in the suit. His action against the city was, in one cause of action, to recover the amount of the assessment, and, in a second cause of action, to recover for the attorney's fees paid for conducting the unsuccessful suit. The common pleas gave judgment for the entire claim. The circuit court affirmed this judgment as to the amount of the assessment, and reversed it as to the amount claimed to have been paid as attorney's fees. Goulden asks of this court a reversal of the judgment of reversal.

Syllabus by the Court

Counsel fees and other expenses paid by a party in the conduct of an unsuccessful suit against lot owners to recover the amount of a sewer assessment assigned by a municipal corporation to such party in payment for the construction of a sewer, which suit failed because the assessment was held invalid, are not recoverable in an action subsequently brought against the corporation for damages for violation of contract, even though by its contract the corporation had stipulated that the assessment should be a valid assessment.

Stephen Brophy and John F. Kumler, for plaintiffs in error.

W. A. Miles, for defendant in error.

SPEAR, J. (after stating the facts).

It will be noted that one question is common to both cases: Is the city liable for attorney's fees incurred in prosecuting the action against the owners whose lands were claimed to have been benefited by the respective improvements, but which were found not liable to assessment? Probably there is no difference in principle between counsel fees and other expenses. The affirmative of this proposition is based upon the further proposition that, in a suit for breach of an agreement in a written contract by which a claim or chose in action is assigned, the party damaged may recover the costs and expenses of previous unsuccessful litigation necessarily resulting from such breach, including counsel fees; and especially so where there has been a guaranty of title, and the title fails, or of validity, and the claim assigned proves invalid. Decisions of courts in other states support this claim. But they are not uniform, and the question, after all, is, what is the law of this state on the subject? Decisions of this court determine the matter as to cases bearing more or less analogy to the cases at bar, but the precise question has not heretofore been presented. The rule that in actions involving malice, fraud, insult, or oppression, reasonable counsel fees may be included in the recovery, is well established. Stevens v. Handly, Wright, 121; Sexton v. Todd, Id. 316; Roberts v. Mason, 10 Ohio St. 277;Finney v. Smith, 31 Ohio St. 529;Stevenson v. Morris, 37 Ohio St. 10; and Iron Co. v. Harper, 41 Ohio St. 100,-are cases of this character. So where land is conveyed with covenants of warranty and for quiet...