Murphy v. City of Albina

• Decision Date: 04 March 1892
• Citation: 22 Or. 106,29 P. 353
• Parties: MURPHY v. CITY OF ALBINA.
• Court: Oregon Supreme Court

29 P. 353

22 Or. 106

MURPHY v. CITY OF ALBINA.

Supreme Court of Oregon

March 4, 1892

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

This was an action by M.H. Murphy against the city of Albina to recover on a quantum meruit for work done. From a judgment for defendant, plaintiff appeals. Affirmed.

George A. Brodie, for appellant.

W.T Muir, City Atty., for respondent.

BEAN J.

This is an action to recover on a quantum meruit for work and labor alleged to have been performed by plaintiff in grading cutting, and filling one of defendant's streets known as "Margaretta Avenue." This is the second appeal in this case. For the purposes of this appeal, the facts sufficiently appear in the case as reported, (20 Or. 379, 26 P. 234,) except from this record it appears that plaintiff by his written contract, was to grade Margaretta avenue, a public street of the defendant, to the grade established by the city, as surveyed and established by Hulbert & McQuinn and according to a profile made by them, and made a part of the contract; the work to be done under the supervision of the committee on streets and public property, who should furnish the contractor with all necessary heights and distances, for which work he was to receive, on the approval in writing of the committee on streets and public property and engineer in charge, a certain rate per cubic yard for all necessary excavations and fills made by him; reference being made to a tracing made by the engineer in charge, as to the number of yards of excavation or fill required. The evidence tended to show that plaintiff proceeded to perform his contract, the engineer in charge setting stakes along the line of the work, giving the height as established by the defendant and provided in the contract. After he had finished grading according to the stakes set by the engineer, and was ready for laying sidewalk and planking, the engineer made a change in the grade stakes of from three to ten inches of a rise in the grade the entire length of the street, and directed plaintiff to bring the surface of the street up to this line. Plaintiff complained of the action of the engineer in changing the grade to the mayor and two members of council of defendant, and was by the mayor told "to go ahead and finish his work according to the engineer's instructions, and quit his complaining, or he would not get paid for his work, or something to that effect." That he did finish the work according to the instructions of the engineer, and was compelled to do $466.20 worth of work more than called for in his contract and the estimates accompanying the same. That he told one member of the council and the mayor that, if they did not rectify the mistake, there would be damages claimed, and, on the day the street committee was examining the work after its completion, he told them he should sue defendant for damages. That, after the work was completed, the defendant accepted and paid for all the work provided in the contract, but refused to pay for any extra work, as ordered by the engineer. It does not appear that the council, as an official body, authorized or assented to the change in the contract or street grade by the engineer, or directly ratified the same; nor does it appear that the common council directed or had knowledge that the plaintiff was doing the extra work, or knew that it had been done at the time the work under the contract was accepted, unless it might be inferred from the fact that the mayor and two members of the council knew of the change in the grade; and the mayor directed the work, and a majority of the individual members of the council knew that plaintiff threatened to make some claim for compensation for the extra work ordered by the engineer.

The errors complained of are in the giving and refusal of certain instructions by the trial court. The instruction requested by plaintiff, and refused by the court, the refusal of which we held to be error on the former appeal, to the effect that, if the extra work was ordered by the engineer and performed by plaintiff under the direction of the mayor and two members of the council, and the city, acting through its proper officers, accepted the same, the defendant is liable, was, in substance, given in the general charge,--the court adding an explanation, in its opinion, proper and necessary to a clear understanding by the jury, as to who are the proper officers, and how they must act, in order to bind the city,--and therefore requires no further consideration here. On this point the former decision was that if the work was performed in improving the streets of defendant without regular authority, by direction of some person assuming to act for it, and was afterwards accepted by defendant, this would be a ratification, and equivalent to an original authority. But as to what would constitute an acceptance of the work was not in the case, nor considered or decided by the court. The record then before us showed "that when said work [[extra work] was completed, as ordered by the city surveyor, the same was accepted by the city of Albina;" so that the only question was whether, under such a state of facts, the city was liable for the reasonable value of the work.

But on the second trial the question of acceptance was the vital point in the case, and it was therefore proper and necessary for the court to instruct the jury fully upon this question, and the instruction as requested by plaintiff furnished no guide for the jury as to who are the proper officers of the city, and as to what would amount to an acceptance of the work. It follows, therefore, that this case must depend upon the correctness of the instructions as given by the court. The jury was instructed, in effect, that, in order for plaintiff to recover, it must appear that there was work done by plaintiff outside of his contract, at the request and with the knowledge of a majority of the members of the council, and that plaintiff made claim for the extra work, and the council, as an official body, recognized the claim, and accepted the work, and that conversations with individual members of the council on the street would not amount to a contract or acceptance of the work, but, in order to bind the city, the council must have been together, acting as a body; and that if plaintiff did perform work outside of his contract, and the council simply undertook to accept of the completion of the contract and pay what was earned under it, the city would not be liable for any extra work, although the members of the council may have been informed on the street, as individuals, that plaintiff claimed something for extra work. Certainly the defendant is not liable if it did not, as a municipal corporation, contract with or authorize in any way, the plaintiff to do the extra work necessary to bring the street up to the grade established by its engineer, or by some corporate act ratify the contract or accept the work. Though it may be charged with the duty of regulating and repairing the streets, undoubtedly, no action will lie against it for work or labor put upon them without its assent or authority. There is no room here for the contention that the defendant in any way contracted with or authorized plaintiff to perform this extra work. The only contract it made with him was the written one, which provided expressly that the work should be done according to the grade as established by Hulbert & McQuinn. The provision in the contract that the work should be done under the supervision of the committee on streets and the...