St. Louis Hosp. Ass'n v. City of St. Louis

• Decision Date: 31 March 1852
• Citation: 15 Mo. 592
• Parties: ST. LOUIS HOSPITAL ASSOCIATION v. THE CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

15 Mo. 592

ST. LOUIS HOSPITAL ASSOCIATION

v.THE CITY OF ST. LOUIS.

Supreme Court of Missouri.

March Term, 1852.

S. KIRTLEY, City Counselor. 1. The city was under no legal or moral obligation to provide for the insane; it was in the exercise of a mere charity, and not in the performance of any duty, that the appellant placed the insane patients at the hospital and paid for their board. When, therefore, the plaintiff had notice, that the city council refused to make an appropriation for the further maintenance of the insane, the contract was terminated, and the plaintiff had no right, after such notice, to expect or demand compensation of the city. Judge Mullanphy, who was mayor in 1847, stated, that after the 1st of July, he refused to audit the monthly account for keeping the insane by the plaintiff, because, he had notified the Hospital Association of the refusal of the city to make further appropriations, or to pay for the maintenance of insane in the hospital. 2. The court erred in allowing the plaintiff to read to the jury the ordinance No. 1205, and passed in 1843. There was no pretense, that the contract under which the plaintiff sought to recover, was predicated on said ordinance or resolution, and it was, therefore, wholly irrelevant, and calculated to mislead. 3. If the city could be bound by a verbal agreement, made by a subordinate officer, it is difficult to reconcile the position taken by the court below, that in giving the notice, that the city would no longer pay for the board of the insane, such notice could not be given by the mayor, but only by an ordinance. No part of the negotiation was conducted in writing, and it is not right to apply a rule for the benefit of the plaintiff and deny its application for the defendant.

A. J. P. & P. B. GARESCHE, for Respondent. The errors assigned are, 1st. The evidence given by the plaintiff, to which defendant excepted. But the only instance of this, is when the ordinance No. 1205 was read. The record has not preserved the reason of the obligation. While, therefore, as a matter of truth, we will admit that is was on the score of irrelevancy, we will also state, that at the time of offering it, we mentioned that we did not offer the ordinance to prove the terms of our contract, but, as an instance, in support of the declarations of Sister Mary Alexis, Sister Mary Alicia and Sister Olympia, that it was the custom for the hospital to contract with the city register, and that the contract would subsequently be recognized, either by the passage of an ordinance embodying the provisions of the contract, or appropriating money for it. In other words, we offer it as cumulative, not as original evidence, and with this explanation it was admitted by the court. It certainly did not affect the verdict, as we shall take occasion to show in the argument about the damages, and hence, even if the court erred, it would not be a ground for reversal. The 2nd, 3rd and 4th errors assigned, turn upon the one question, whether an executory contract can be dissolved by one without the consent of the other party, unless the party seeking to annul the contract place the other party in the same position he occupied before the contract was made. The court below held, that it could not be done. There was no evidence that the city, when its officers gave the alleged notice, offered to take back the patients. Indeed, they did not. It is true, that under the provision of ordinance No. 1778, the patients were subsequently taken away by the city authorities, but the charge is for the support of the insane patients until taken away by the city authorities. That the court did not err in its construction of the law; see Comyn on Contracts, 38, 39; 2 Kent's Com. 480; Chitty on Contracts, 574, 575; Griffith v....