Thomas & Co. v. City of Olympia

• Decision Date: 27 July 1895
• Citation: 12 Wash. 465,41 P. 191
• Court: Washington Supreme Court
• Parties: THOMAS & CO. v. CITY OF OLYMPIA.

41 P. 191

12 Wash. 465

THOMAS & CO. v. CITY OF OLYMPIA.

Supreme Court of Washington

July 27, 1895

Appeal from superior court, Thurston county; T. M. Reed, Judge.

Action by Thomas & Company, a corporation, against the City of Olympia, a municipal corporation. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Frank D. Nash, for appellant.

A. J Falknor and Preston M. Troy, for respondent.

HOYT C.J.

The object of this action was to establish a liability against the respondent for certain warrants issued to the contractor in payment for work done upon a contract for the grading of a street. These warrants were primarily payable out of a special fund which, it was provided by ordinance, should be created by an assessment to be levied upon the property to be benefited by the work. and it was claimed that, by reason of the negligence of the officers of the city in failing to create such fund, the city had become liable to pay the warrants out of its general fund. The respondent after denying certain allegations in the complaint, set up by way of affirmative defense, the alleged facts: (1) That at the time the contract for the work was entered into it could not have made a legal contract for the doing of the work at the expense of its general fund, for the reason that its indebtedness at the time exceeded the limit of debt which it was authorized to incur under the constitution of the state; and (2) that the assessment, upon the property benefited, of the cost of the improvement, had been made with care, and in perfect good faith, and that the failure to collect such assessment was owing to a decision of the supreme court of the state, and certain decisions of the superior court of Thurston county, which made such collection impossible; that on account of such decisions the city was proceeding at the time the answer was filed to make a new assessment upon the property benefited, for the purpose of collecting money to be placed in the special fund out of which the warrants could be paid. To these affirmative defenses the plaintiff demurred, and, upon its demurrer being overruled, elected to stand thereon, and suffered judgment to be entered against it.

The sufficiency of these defenses is the principal question involved in the appeal. The facts alleged therein are so similar to those which we held, in the case of Soule v City of Seattle, 6 Wash. 315, 33 P. 384, 1080, to have been sufficient to relieve the city of liability, that we do not feel called upon to further discuss the question than to say that, in our opinion, it comes clearly within the principles decided in that...