Hansen v. Town of Anthon

• Citation: 173 N.W. 939,187 Iowa 51
• Decision Date: 24 September 1919
• Docket Number: 32572
• Parties: H. P. T. HANSEN, Appellant, v. TOWN OF ANTHON, Appellee
• Court: Iowa Supreme Court

173 N.W. 939

187 Iowa 51

H. P. T. HANSEN, Appellant, v. TOWN OF ANTHON, Appellee

No. 32572

Supreme Court of Iowa, Des Moines

September 24, 1919

Appeal from Woodbury District Court.--J. W. ANDERSON, Judge.

ACTION for damages for breach of contract. The measure of damages claimed is the value of work done and materials furnished upon the contract before it was breached by defendant. Estoppel is pleaded by both parties. There was a trial to the court, and a judgment dismissing the petition. The plaintiff appeals.

Reversed.

Henderson Fribourg & Hatfield, for appellant.

Prichard & Prichard and C. N. Jepson, for appellee.

EVANS J. LADD, C. J., WEAVER, GAYNOR, PRESTON, SALINGER, and STEVENS, JJ., concur.

OPINION

EVANS, J.

I.

The town of Anthon, defendant, advertised for bids for the erection of an electric power house. The plaintiff was the lowest bidder. A formal contract was entered into with him on December 5, 1916, duly signed by the mayor and clerk on the part of the defendant town, and by Hansen in his own behalf. Pursuant thereto, Hansen proceeded to the erection of the power house upon the ground of the defendant, and expended a large amount of money for labor and materials therefor.

On January 13th following, the city council passed an order repudiating the contract, and denying its own authority to enter into the same, and served notice accordingly upon Hansen, coupled with a demand that he desist from further performance of the alleged contract. Pursuant to such demand the plaintiff did desist. The events transpiring subsequently, upon which defendant relies for an estoppel, will be considered in another division.

We will consider first the question of the right of the plaintiff as of the time of the alleged breach of the contract. There is some confusion in the record as to whether the action should be deemed one for damages for breach of contract or one for quantum meruit for the value of services rendered. The question itself upon this record is not a very material one; because, if the plaintiff is entitled to damages, the only measure of such damages as he claims is the quantum meruit. The ultimate question, therefore, in any event is, Is he entitled to the quantum meruit?

The ground upon which the town council repudiated the contract was that it, itself, had entered into the same illegally, in that it had failed to conform to the requirements of Section 683 of the Code, which section is as follows:

"No resolution or ordinance for any of the purposes hereinafter set forth shall be adopted without the concurrence of a majority of the whole number of members elected to the council, to wit:

"1. To pass or adopt any by-law or ordinance;

"2. To pass or adopt any resolution or order to enter into a contract;

"3. To pass or adopt any ordinance for the appropriation or payment of money; but in towns, by-laws, ordinances, and the resolutions and orders set forth in this section shall require for their passage or adoption a concurrence of four councilmen, or of three councilmen and the mayor. On the passage or adoption of every by-law, ordinance, and every such resolution or order, the yeas and nays shall be called and recorded. No money shall be appropriated except by ordinance."

The town council consisted of five members. On December 4th, a meeting was had, which was attended by four members and the mayor. At this meeting, a motion was made that a contract be entered into with the plaintiff. This motion, being put by the mayor, presiding, resulted in a tie vote, two and two. The mayor cast a yea vote, and declared the motion carried. Thereupon, the meeting adjourned until the following day. Under the provisions of the statute above quoted, it was essential, in order to justify the declaration by the mayor of the adoption of the motion, that it should have been voted for either by four councilmen or by three councilmen and the mayor. It must be said, therefore, that the motion was not carried, and we may regard the proceedings of the council at that meeting as a mere nullity. On the following day, however, the council convened in its adjourned meeting, the same four members being present. A motion was there made that the mayor and clerk be instructed to sign the contract with Hansen. This motion being put, three members of the council voted yea, and were so recorded. The other two members of the council were recorded as absent, though one of them was present. The mayor declared the motion carried, and pursuant thereto, signed a contract with the plaintiff. It does not appear that the mayor voted, in a formal sense. The question arising at this point, therefore, is whether, upon this record, the mayor should be deemed to have voted in the affirmative. The record of the meeting recites that there were, "Noes, none." It appears from the record, therefore, that the mayor did not vote in the negative. Under the provisions of the statute above quoted, this motion could be carried only by the vote of four members of the council, or by that of three members of the council and that of the mayor. Three members of the council having recorded their vote in the affirmative, the adoption of the motion rested wholly with the mayor. He could defeat it by a negative vote, and carry it by an affirmative vote. It was his clear duty to vote, one way or the other. To declare the motion adopted was, impliedly at least, a declaration of his own vote. We think it would be unduly technical to hold, under such circumstances as presented herein, that the mayor's vote was wanting, for lack of formality. The motion, therefore, was legally carried, and the contract pursuant thereto was valid.

II. Our foregoing conclusion would be decisive of this feature of the case, were it not for the fact that plaintiff predicated his petition, not upon the actual validity of such proceedings of the council, but upon subsequent estoppel by ratification. Such being the theory upon which the case was tried, we should, as against the appellant, adopt the same here. Two questions, therefore, arise: (1) Could the town, through its council, ratify the contract, if originally invalid? and (2) did it so ratify?

In our view of the record, the question of ultra vires does not enter deeply into the case. No actual want of power in the town to make such a contract is involved. Only the procedure is assailed. The purported contract was one which the council could have made by proper procedure. Assuming that the irregularity in the manner of adopting the motion created an infirmity in the contract, yet the infirmity was one which could have been remedied by subsequent formal proceedings by the council. It could have been so remedied by the vote of the same three members and of the mayor. We think it equally clear that the municipality was not wholly powerless to ratify the contract by the conduct of its council pursuant to its purported adoption of such motion, in so far as such conduct was in good faith, in the interest of the city. The irregularity, such as it was, was not substantial. At most, it was only formal and doubtful. Our first question, therefore, we answer in the affirmative.

Pursuant to the purported adoption of the motion, the mayor and clerk, with the knowledge of the council, entered into a contract with plaintiff which, by its terms, bound him to construct a power house for the defendant upon its ground. At that time, the mayor and the members of the council knew the facts which constituted the irregularity in the adoption of their motion. If they then appreciated the legal effect to be what they...