Mulligan v. City of Lexington

• Decision Date: 02 December 1907
• Citation: 105 S.W. 1104,126 Mo. App. 715
• Parties: MULLIGAN v. CITY OF LEXINGTON.
• Court: Missouri Court of Appeals

105 S.W. 1104

126 Mo. A. 715

MULLIGAN v. CITY OF LEXINGTON.

Kansas City Court of Appeals. Missouri.

December 2, 1907.

1. MUNICIPAL CORPORATIONS—ORDINANCES— ASSENT OF MAYOR.

Under the express provisions of Rev. St. 1899, § 5832 [Ann. St. 1906, p. 2948], an ordinance requires the assent and approval of the mayor to the action of the council.

2. SAME—PROCEEDINGS OF COUNCIL—MINUTES —MAYOR'S SIGNATURE.

Under the express provisions of Rev. St. 1899, § 5757 [Ann. St. 1906, p. 2930], the mayor is the president of the council, and his signature to the minutes of the council is merely an attestation of them as president, and is not an approval of the proceedings as mayor.

3. SAME—PUBLIC IMPROVEMENTS — NECESSITY FOR ORDINANCE.

Under Rev. St. 1899, § 5858, amended by Laws 1901, p. 63 [Ann. St. 1906, p. 2962], empowering cities of the third class to enact ordinances for various purposes, among others to repair street pavements, etc., and providing that the cost of such work shall be included as a part of the cost of the work done on the part of the street whose improvement is provided for by the same ordinance and contract, the power to improve a street can be exercised only by ordinance, or at least by legislative action of the council and mayor acting in conjunction.

4. PLEADING—ANSWER—ADMISSION OF VALID CONTRACT.

In an action on an alleged contract, an answer referring to the contract, and alleging matter in a manner assuming a contract, is merely a reference to the contract alleged in the petition, and, where that is invalid, no binding contract is admitted by the answer.

5. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS —INVALID CONTRACTS — RATIFICATION.

Where a contract of a city for repairing a street is invalid because not based on an ordinance, payment of a portion of the contract price under authority of a motion adopted by the council has no effect on the contract's validity.

6. SAME.

In such case, a written demand by the mayor, at the council's instigation, upon the contractor, to furnish the repairing material, had no binding effect upon the city.

7. SAME.

Where an ordinance is necessary to the validity of a city's contract, it is equally necessary for a valid ratification of it.

Appeal from Lafayette County Court; Samuel Davis, Judge.

Action by John Mulligan against the city of Lexington. From an order refusing to set aside a nonsuit, plaintiff appeals. Affirmed.

Alexander Graves and William Aull, for appellant. Horace F. Blackwell, for respondent.

ELLISON, J.

Plaintiff seeks to recover damages from the defendant (a city of the third class) which he sustained by the breach of an alleged contract with the city; the breach consisting in refusing to furnish a rock crusher as agreed. The trial court's adverse ruling on the admission of evidence compelled plaintiff to take a nonsuit, and, being unsuccessful in his effort to set the same aside, he appealed to this court.

It appears that the city desired 1,000 perch of crushed rock or macadam for the repair of its streets, and that it advertised for bids in a newspaper, stating the use of the crusher would be given; that there were several written bids, including plaintiff's, and his was accepted. It is alleged in the petition that plaintiff made proper and expensive preparation for the work necessary to fulfill the contract, and, after the city had allowed him the use of the city rock crusher for a short time and after he had furnished a small part of the rock, it refused him further use, and forcibly took possession thereof, and broke up and scattered about his implements and destroyed his expensive preparations, whereby he was disabled and prevented from carrying out the contract, to his damage, etc. There was no ordinance nor formal written contract shown, but the proof made by plaintiff to establish the agreement consisted of the minutes of the council meetings signed by the mayor and city clerk, as well as the advertisement for bids, the bond for faithful performance of the contract, etc. The minutes of the meetings of the council showed that at several meetings, among other proceedings, there was action taken, from time to time, in relation to this work. This action consisted of a verbal motion (at least no written one appears) of a councilman that certain action be taken. Without setting all these out, the following will do as a sample: "Mr. Schawe moved that the city clerk be instructed to advertise for one thousand perch or more quarried limestone, broken into macadam by city's rock crusher, to be delivered in any part of the city, where city council deems necessary. Carried. * * * Oswald Winkler, Mayor; Jacob Fegert, City Clerk." This character of evidence did not show an ordinance or resolution of the formality of an ordinance. An ordinance requires the assent and approval of the mayor to the action of the council. Section 5832, Rev. St. 1899 [Ann. St. 1906, p. 2948]. No consent or approval is shown by the records of the council thus put in evidence. The mayor's signature is merely an attestation of the minutes as president of the council. Section 5757, Rev. St. 1899 [Ann. St. 1906, p. 2930]. That is to say, it vouches that such proceedings took place, but in no way asserts that he approved of them. As president of the council he cannot even vote. Section 5757. His signature would appear to the minutes as presiding at the council meeting, though he might not have favored the proceeding. Rumsey v. Schell City, 21 Mo. App. 175. That an ordinance was necessary to a valid contract there can be no doubt. The charter of cities of the third class grants the power in their corporate capacity to be exercised by ordinance. Section...