Smart v. City of Philadelphia

• Decision Date: 20 April 1903
• Docket Number: 320
• Parties: Smart, Appellant, v. Philadelphia
• Court: Pennsylvania Supreme Court

54 A. 1025

205 Pa. 329

Smart, Appellant, v. Philadelphia

No. 320

Supreme Court of Pennsylvania

April 20, 1903

Argued January 26, 1903

Appeal, No. 320, Jan., T., 1902, by plaintiffs, from order of C.P. No. 1, Phila. Co., March T., 1900, No. 1332 1/2 refusing to take off nonsuit in case of Terence P. Smart and George W. Kelley, Copartners, trading as T.P. Smart & Company v. Philadelphia. Affirmed.

Assumpsit for breach of contract.

The facts appear by the opinion of the Supreme Court.

The court entered a compulsory nonsuit which it subsequently refused to take off.

Error assigned was refusal to take off nonsuit.

Judgment affirmed.

John M. Ridings, with him William Kelley, for appellant.

Chester N. Farr, Jr., assistant city solicitor, and John L. Kinsey, city solicitor, for appellee.

Before MITCHELL, DEAN, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE MESTREZAT:

The department of public works of Philadelphia was authorized by ordinance to enter into contracts for the repaving of certain streets of the city. In answer to an advertisement by the department for proposals for the work, the plaintiffs submitted a bid at which they agreed to repave a part of Wharton street. The contract was awarded to them and they were notified of the fact by a letter from the chief of bureau of highways. They were also advised that the city solicitor would be notified to prepare the contract to be executed by the parties. This not having been done, the plaintiffs wrote the director of public works reminding him of the fact, and requesting him to have the contract prepared so that they might proceed with the work. In a reply to this letter a few days thereafter, the plaintiffs were advised that a passenger railway company would occupy Wharton street with its tracks and that, under its charter, the company would be liable for repaving the street. The city, therefore, declined to enter into a written contract with the plaintiffs for the performance of the work and refused to permit them to do the work. By reason of this action by the city, the plaintiffs instituted the present suit to recover damages. The court below entered a compulsory nonsuit, and we have this appeal.

Article 14 of the charter of Philadelphia declares that "all contracts relating to city affairs shall be in writing signed and executed in the name of the city." This court has held that this requirement of the charter is not merely directory but mandatory, and that unless it is strictly complied with there can be no liability imposed upon the city: Hepburn v. Philadelphia, 149 Pa. 335; McManus v. Philadelphia, 201 Pa. 619. It is therefore settled that a strict adherence to this provision of the city charter will be enforced and that he who asserts and attempts to enforce any agreement or liability against the city must produce a duly executed contract in writing, signed by an officer authorized to make the same. The reason for exacting a strict compliance with this most salutary requirement of the city's organic law is thus stated by the late Chief Justice STERRETT...