Lytle v. City of Ames
| Decision Date | 10 May 1938 |
| Docket Number | 44202. |
| Citation | 279 N.W. 453,225 Iowa 199 |
| Parties | LYTLE v. CITY OF AMES. |
| Court | Iowa Supreme Court |
Appeal from District Court, Story County; T. G. Garfield, Judge.
The City of Ames, Iowa, entered into a contract for the paving of one of its streets, by the terms of which contract the contractor was to accept payment in assessment certificates against abutting property, except deficiency which was payable by city warrants. The work was completed and the certificates duly issued to the contractor who assigned them to the plaintiff. One of the abutting property owners brought suit, contesting the validity of the special assessment certificates against his property, based on the ground that the resolution of necessity was not passed by a three-fourths vote of the city council as required by section 5999 of the Code. On final determination of the matter this court held the assessment certificates void. See case, Seymour v City of Ames, 218 Iowa 615, 255 N.W. 874. Plaintiff, as holder of the certificates, then brought this action at law based on an alleged express written contract, to recover against the city. The city demurred to the petition and the trial court sustained the demurrer, and plaintiff has appealed.
Affirmed.
Edwin J. Stason, of Sioux City, and Stipp, Perry, Bannister & Starzinger, of Des Moines, for appellant.
Marion Hirschburg, of Ames, for appellee.
Since the questions arose on demurrer to the petition, perhaps it is well to set out in full the entire petition as amended. Omitting the formal parts, it reads:
" 1. The defendant is a municipal corporation organized and existing under the laws of the State of Iowa relating to such corporation, and is a corporation of the second class.
2. The city council of the defendant city, by a resolution of necessity in legal form passed by it on the third day of February, 1930, after proper notice had been given, provided for the paving with concrete of a strip six and one-half feet wide on each side of the highway known as the Lincoln Highway in the City of Ames, and provided for the issuance of street improvement certificates, payable to the contractor in payment for the construction of the improvement.
3. After the adoption of the resolution, the construction of the improvement was duly ordered by resolution, notice was given as required by law asking for bids for the work, competitive bids were received, the contract awarded to A. F. Heuer, the lowest responsible bidder, a written contract in legal form was entered into with him, his bond accepted, and the contract and bond were approved by the council.
A copy of the notice to bidders, and a copy of the contract with the said A. F. Heuer, respectively marked Exhibits A and B, are attached hereto and made parts of this petition, but the plaintiff is unable to set out or attach a copy of the specifications referred to in the contract for the reason that the defendant cannot furnish such copy, or is unwilling to furnish the same, or cannot or it is unwilling to furnish the plaintiff with the original so it can have a copy made.
4. The plaintiff alleges that after the proceedings heretofore referred to were had, and relying thereon, the contractor performed the work in full compliance with the said contract and the specifications, the work was accepted as completed by the city council of the defendant city, the required plat and schedule was prepared and filed showing the proper proportion of the cost of the improvement to be assessed to the abutting property the required assessment resolution was duly and legally adopted, the assessment certificates were issued, and the work was paid for by the delivery of such certificates to the said contractor, all being done by appropriate proceedings duly and regularly had as required by law and by the terms of the said contract. The said certificates including the certificates now held by the plaintiff, were numbered and otherwise described, as follows: (Here follows list of certificates referred to) All of said certificates were dated September 2, 1930, all drew interest at the rate of six per cent per annum payable annually, and all are of the form of the copy of one of the certificates attached hereto, marked Exhibit ‘ C’ and made a part hereof.
5. The plaintiff states that the said certificates and all the rights of the said contractor have been assigned and transferred to the plaintiff herein.
6. The plaintiff alleges that in an action tried and determined in the Supreme Court of this State, in an opinion rendered on the 23rd day of June, 1934, entitled Seymour v. City of Ames the plaintiff being an abutting property owner, and the case being found in 218 Iowa 615, 255 N.W. 874, and subsequent pages, involving certificate No. 11084, for $1,671.46, above listed, the court held the said assessment void because the said resolution of necessity was passed by the said city council, consisting of six members, on its own motion, and not on petition of property owners, by the vote of four members, such number not being a three-fourths vote required by section 5999 of the Code of Iowa.
7. On the 10th day of August, 1936, the plaintiff made demand upon the defendant for the amount due to him as the assignee of the rights of the contractor under said contract.
8. The plaintiff's cause of action against the defendant is based upon the facts set forth herein to the plaintiff's loss and damage in the sum of $5,480.22, with interest at six per cent per annum payable annually from July 21, 1936.
Wherefore, the plaintiff demands judgment against the defendant in the sum of $5,480.22 with interest thereon from July 21, 1936, at the rate of six per cent per annum payable annually and asks judgment for cost."
There was a demurrer to the petition which we likewise set out in full:
" 1. That the facts stated in the pleading do not entitle the plaintiff to the relief demanded for the reason that the facts therein alleged show that the defendant's acts upon which liability is sought to be predicated were void at inception because of matters alleged in Paragraph 6 and seven of plaintiff's petition and no liability ever attached to said City because thereof.
2. The petition shows that the cause of action, if any the plaintiff has, as set out in said petition is barred by the applicable Statute of Limitations for the reason that more than 5 years has elapsed between the time this cause of action, if any there be, arose, and the time of commencing this action.
3. That the facts stated in the pleading do not entitle the plaintiff to the relief demanded for the reason that the facts therein alleged show that the City of Ames never guaranteed or pledged its credit to the payment of the special assessment certificate now involved.
4. That the facts stated in the pleading do not entitle the plaintiff to the relief demanded for the reason that the facts therein alleged show that the City of Ames never had authority to guarantee or pledge its credit to the payment of the special assessment certificates sought to be recovered upon by this plaintiff.
5. That the facts stated in the pleading do not entitle the plaintiff to the relief demanded for the reason that the facts therein alleged as set forth in plaintiff's Exhibit ‘ A’ show that the City of Ames did not agree to give this defendant or his assignee valid and enforcible certificates but as set forth in plaintiff's Exhibit A-1 the City of Ames merely agreed that, ‘ Payment will be made to the contractor for said work in special assessment certificates to the extent that same are assessable by law, said assessment certificates to draw interest at the rate of six (6) per cent per annum from the date of acceptance of the work by the City of Ames, Iowa.’
6. That the facts stated in the pleading do not entitle the plaintiff to the relief demanded for the reason that the facts therein alleged show that the plaintiff herein holds such certificates subject to all defenses available to the City of Ames."
The trial court sustained the demurrer and from this ruling plaintiff has appealed. The only part of the exhibits attached to the petition having any bearing on this case is the following paragraph taken from the contract:
We might have some difficulty in determining the exact theory of the plaintiff if it were not for the fact that in his brief and argument he repeatedly asserts that his cause of action is upon " written contract." It will be noticed that by paragraph 8 of the petition he states that his cause of action " is based upon the facts set forth herein to the plaintiff's loss and damage in the sum of $5480.22 with interest," etc. As we understand the issues presented by the petition as interpreted in the appellant's argument, plaintiff's cause of action is bottomed upon the theory that since the city had power under the general statutes, sections 5938-5940 of the 1935 Code of Iowa, to enter into a contract to pave its streets and to pay the contract price out of its general tax fund, and the contract...
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