Murphy v. City of Albina

• Decision Date: 23 March 1891
• Citation: 26 P. 234,20 Or. 379
• Parties: MURPHY v. CITY OF ALBINA.
• Court: Oregon Supreme Court

26 P. 234

20 Or. 379

MURPHY v. CITY OF ALBINA.

Supreme Court of Oregon

March 23, 1891

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

This action is prosecuted by the plaintiff against the defendant to recover the sum of $422.60 for grading, cutting, and filling Margaretta avenue, one of the defendant's streets, which work is alleged to have been done at the special instance and request of the defendant. The answer denies the material allegations of the complaint, and then alleges, in substance, that on the 23d day of June, 1888, the plaintiff and defendant entered into a contract by the terms of which plaintiff agreed, among other things, to do all the work necessary and required to be done in and about the improvement of Magaretta avenue, and for a certain distance along said avenue, in consideration of certain payments in said contract mentioned, which have been fully made; and all of the grading in the complaint alleged was done under and in accordance with this agreement. It is then alleged that the plaintiff agreed to look for payment to a fund to be raised by an assessment upon the property liable to pay for such improvement, and that defendant assessed, collected, and paid into its treasury the whole sum which plaintiff was entitled to receive for said work. The reply denied the new matter in the answer, and then sets out the contract referred to therein, and then adds: "That, subsequent to the making of said contract, and after the plaintiff had graded excavated, and filled Margaretta avenue to the full extent required by the specifications and estimates prepared by the defendant, and under which said contract was entered into and had fully complied with the terms of said contract on his part to be done and performed, defendant changed the grade of said street, and added to the work to be done 700 yards of cut and 942 yards of fill, which is the work sued for in this action." Upon a trial before a jury a verdict was rendered for the defendant, upon which a judgment was entered, from which this appeal is taken. The bill of exceptions shows that upon the trial the plaintiff gave evidence tending to prove that plaintiff performed the work and labor named in the complaint; that he had not been paid therefor; that the work was done by order of the city surveyor of the city of Albina, and was not included in the contract set up in defendant's answer; that the grade of said street, as provided for in said contract, was changed by order of the city surveyor of Albina, and that such change in the grade necessitated the doing of the work named in the complaint; that when said change was ordered plaintiff complained of the same to two members of the council and to the mayor of the city of Albina, and that he was told by them to go on and do the work as directed, and follow the instructions of the city surveyor; that when said work was completed as ordered by the city surveyor the same was accepted by the city of Albina, and that the reasonable value of the same was the sum of $466.20, and that said work was for the benefit of said city of Albina. At the conclusion of the evidence the plaintiff asked the court to instruct the jury that, if they should find that the work sued for was performed by plaintiff by order of the city surveyor and street supervisor of said city of Albina, acting for and on behalf of said city, and that said city, acting through its proper officers, accepted said work, and that said work was outside of and not included in plaintiff's contract with said city, and that said city received the benefit of the same; that the plaintiff notified the mayor of said city and the only councilman to be found at the time such work was so ordered of the said order of the city surveyor and street supervisor, and that said mayor and said councilman directed...