The Vill. of Dwight v. Palmer

• Decision Date: 30 September 1874
• Citation: 1874 WL 9126,74 Ill. 295
• Parties: THE VILLAGE OF DWIGHTv.CHARLES L. PALMER.
• Court: Illinois Supreme Court

74 Ill. 295

1874 WL 9126 (Ill.)

THE VILLAGE OF DWIGHT

v.CHARLES L. PALMER.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Livingston county; the Hon. NATHANIEL J. PILLSBURY, Judge, presiding.

This was an action of assumpsit, by the village of Dwight against Charles L. Palmer. The declaration contained only the common counts for money had and received, etc. On a trial there was a verdict and judgment in favor of the defendant. The opinion of the court states the material facts of the case.

Mr. A. E. HARDING, for the appellant.

Mr. S. S. LAWRENCE, and Mr. L. G. PEARRE, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The declaration in this case contains only the common counts. The pleas are: first, non-assumpsit; and second, nul tiel corporation.

The facts in this case are briefly as follows: On the 11th day of August, 1873, the village of Dwight entered into a contract with appellee, who was at that time the proprietor of the only newspaper published in the village, to publish the ordinances enacted by the board, which the appellee undertook to do for the consideration of $300. The same evening on which the resolution was passed, appellee, who was himself clerk of the board of trustees, and acting as such, presented to the president of the board three blank orders for his signature, which he signed, to be filled up as he supposed with the amounts of a like number of bills previously audited. That night or the next morning, appellee filled up one of the blank orders with the sum of $300, the amount of his contract, and on presentation to the treasurer it was promptly paid. No part of the work had then been done, nor had his bill been audited, nor was there any agreement to pay for the work in advance.

The members of the board became dissatisfied with the conduct of appellee in drawing the money before any part of the work had been done. A meeting of the board was immediately called by the president, at which appellee was present. At that meeting it was proposed appellee should return the money which it is alleged he had wrongfully obtained, but this he declined to do. A resolution was then passed requiring him to give bond with sufficient security for the faithful performance of his contract. Appellee agreed to this proposition and had such bond prepared, but no one ever called for it, and consequently it was never delivered or accepted.

On the 15th of August the board of trustees held another meeting, at which the resolution authorizing appellee to print and publish the village ordinances passed on the 11th of August was rescinded, as was also the resolution of the board requiring security for the performance of the contract. Appellee at this meeting tendered his resignation as clerk, the consideration of which was laid over to the next regular session, which would be held on the 19th of the same month. At the next session of the board the resignation of appellee was accepted, to take effect on the 19th of August. Only a portion of the work had been done when the trustees undertook to rescind the alleged contract, and there had then been no number of the paper issued in which the ordinances could be...