Purdy v. City of Independence

• Decision Date: 05 October 1888
• Citation: 75 Iowa 356,39 N.W. 641
• Parties: PURDY v. CITY OF INDEPENDENCE.
• Court: Iowa Supreme Court

75 Iowa 356

39 N.W. 641

PURDY

v.CITY OF INDEPENDENCE.

Supreme Court of Iowa.

October 5, 1888.

Appeal from district court, Buchanan county; J. J. NEY, Judge.

Plaintiff was treasurer of the defendant city from March, 1886, to March, 1887. He brought this action to recover the compensation allowed by the ordinances of the city for collecting and disbursing certain moneys belonging to the city, which came into his hands during his term of office. The district court, at the close of the evidence, directed a verdict for plaintiff, and entered judgment thereon. Defendant appealed.A. M. Shellito, City Sol., and E. E. Hasner, for appellant.

C. E. Ransier, for appellee.

REED, J., ( after stating the facts as above.)

When plaintiff was elected to the office of city treasurer, the following ordinances were in force:

“CHAPTER IX. * * * Sec. 16. That the treasurer shall, before entering upon the duties of his office, execute a bond to the city in the sum of five thousand dollars. He shall collect, receive, and safely keep all moneys due or belonging to the said city, and for any sum of money so received shall execute duplicate receipts, one of which shall be delivered to the person from whom such sum shall be received and the other returned to the city clerk. * * *”

“Sec. 18. The treasurer shall be ex officio the collector of the city, and shall perform all the duties required by law or ordinance to be performed by the city collector.”

“CHAPTER VII. Sec. 5. The city treasurer shall receive as compensation one per cent. on all collections made by him, and also one per cent. on all disbursements made by him from the city treasury: provided that, for all moneys received by him of the county treasurer, he shall receive no compensation.”

The city negotiated its bonds to the amount of $40,000, for the purpose of raising the necessary money for the erection of a system of water-works. The arrangements for the negotiation of the bonds were made by the mayor with a firm of brokers in Chicago, but the moneys derived therefrom were paid over to plaintiff, who kept and disbursed the same to the contractors who did the work for the city. And his claim is for the compensation provided by section 5, c. 7, for collecting and disbursing that amount of money. Before the bonds were negotiated, plaintiff signed and delivered to the city a writing, by which he agreed to accept as full compensation for receiving and disbursing the moneys which should be derived therefrom the sum of $50. Afterwards, however, but before the bonds were negotiated, he gave a written notice to the city council that he would decline to accept any other compensation for his services than that provided in the ordinance. But before that notice was received by the council that body adopted a resolution allowing the treasurer $50 for receiving and disbursing the money to be derived from the sale of the bonds. The record of the council, however, does not show that the ayes and noes were called in the passage of the resolution. The city afterwards offered to pay said sum of $50, but plaintiff refused to accept that amount.

1. It was contended by counsel for plaintiff that, owing to the failure of the council to call the ayes and noes on the passage of the resolution, which was the only action taken by that body, looking towards the acceptance of plaintiff's offer, the arrangement was not consummated in the manner provided by law, and consequently it never had the force and effect of a contract. But, in the view we take of the case, this question need not be gone into, and for the purpose of the case it will be conceded that a contract, whereby plaintiff agreed to accept, and defendant to pay, $50, as full compensation for the services, was regularly entered into. It will also be conceded that the subsequent attempt by plaintiff to terminate the arrangement was without effect. It is entirely clear, we think, that but for the contract plaintiff would be entitled to the compensation provided by the ordinance for disbursing the money. The language of section 5, c. 7, is “on all disbursements made by him from the city treasury.” By no possible construction can this language be limited to the ordinary revenues of the city, and it was plaintiff's duty, under the other...