Keith Furnace Co. v. Mac Vicar
| Decision Date | 21 June 1938 |
| Docket Number | 44371. |
| Citation | 280 N.W. 496,225 Iowa 246 |
| Parties | KEITH FURNACE CO. v. MAC VICAR. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; F. S. Shankland, Judge.
Action on a promissory note. Plaintiff filed a motion to strike the answer of defendant which was sustained. Defendant appealed.
Affirmed.
Stipp Perry, Bannister & Starzinger, of Des Moines, for appellant.
Guy A Miller, of Des Moines, for appellee.
Plaintiff brought this action on a promissory note executed by defendant in the sum of $564.96 in payment of the balance due for furnishing and installing an oil burning system in defendant's home by plaintiff. The defendant, in her answer, stated that plaintiff and defendant on September 28 1935, entered into a written contract which provided that the plaintiff would install an oil burning system in the home of defendant; that on June 25, 1934, the Building Code of the city of Des Moines, Ordinance No. 4227, was duly enacted and passed by the City Council of Des Moines, Iowa; that said ordinance was published in book or pamphlet form on or about May 1, 1935, in a volume entitled " Ordinances of the City of Des Moines passed during the Fiscal Year ending March 31, 1935," and that said volume contained only the ordinances of the City of Des Moines passed during the period commencing April 1, 1934, and ending March 31, 1935; that said ordinance was never published in a newspaper at or after the date of the passage of said ordinance by the City Council although there were at said date and ever since have been newspapers published and of general circulation in the city of Des Moines, Polk County, Iowa; that in violation of the express terms of said Building Code, the plaintiff commenced making the installation of the forced air oil burning system described in Exhibit " A" and completed the same without filing any plans or specifications covering said work or making any application for a permit to make such installation or obtaining a permit or paying permit fees or giving any notice whatsoever to the building commissioner of the city of Des Moines that said installation was being contemplated or made, and by reason of the premises, the performance of the plaintiff was illegal and void and plaintiff can claim no rights under the contract, Exhibit " A", or on the note for which the plaintiff's unlawful act was the consideration.
The material parts of the ordinance are the following:
" Ordinance No. 4227. Providing for fire limits and regulations covering the construction, alteration, equipment, occupancy, repair, use and removal of buildings and other structures; regulating the installation of warm air furnaces when used for heating purposes in residences and other buildings; regulating the installation and use of oil and gas burners and automatic stokers.
Section 1. This ordinance shall be known and cited as the Building Code and is hereby declared to be a remedial ordinance and is to be construed so as to secure the beneficial interests and purposes intended and is to apply to all parts of the City of Des Moines, hereafter referred to as the City.
Section 9. Permits Required and Issued by this Department. Permits shall be required for the following operations: * * *.
j. The installation or replacement of all gas and oil burners and automatic stokers as defined in Section 428. * * *.
m. It shall be the duty of the installer or his agent to obtain a permit for the construction, installation, replacement, or reset of a furnace and/or appurtenances before commencing same.
Section 12. Plans and Specifications. Before proceeding with * * * the installation of any apparatus covered by Section 9, the owner or his agent shall, except for removal of buildings, accompany the application for such permit with two complete sets of plans and specifications. * * *. One set of approved plans and specifications shall be kept on the job until completion and shall be available at all times to the inspectors of the department.
Section 13. Department Approval. All plans and specifications shall be submitted to various departments necessary and their approval or disapproval secured, together with the reasons for such disapproval. Upon the approval of all the departments, and after payment of the proper fee, the department shall be empowered to issue a permit therefor. * * *.
Section 407. Defined. That the provisions of this article shall be held to be the minimum requirements adopted for the protection of the health, peace, welfare, sanitation and safety of the community and for the protecton of the ultimate purchaser or user of the heating plant."
The ordinance imposed a penalty of $100 or 30 days in jail for violation of the ordinance.
Plaintiff filed a motion to strike the defense to his cause of action set out in defendant's answer on two grounds. The first ground is that the Building Code was never in force in the city of Des Moines and never a valid ordinance.
The second ground is that " even though the ordinances referred to by the defendant in her answer were valid and binding, the failure to secure a permit on the part of the plaintiff would constitute no defense to the plaintiff's action to recover on the note for the balance of the purchase price; and further this plaintiff states that said ordinance does not purport to declare any contracts executed against its provisions even though said ordinance is valid, to be null and void, but, on the contrary, when all of its terms are read together, discloses a contrary intent, for that it is provided in said ordinance that if a permit is not secured before commencing the work, it shall be the duty of certain designated city officials to collect not only the regular fee for the permit but additional sums, in no case less than $5.00, for requiring the installer of a furnace to get a permit" .
The trial court sustained the motion to strike and defendant appealed.
As we have disposed of the case on the second ground of the motion to strike, it will not be necessary for us to determine whether or not the Building Code of the city of Des Moines is a valid ordinance.
As above stated, plaintiff claims that its failure to comply with the provisions of the Building Code does not constitute a defense to its action to recover on the note given for the balance of the purchase price. Appellant submits three related propositions to sustain her position that because plaintiff violated the terms of the Building Code the contract was illegal and void and plaintiff can claim no rights...
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