Tracy Cement Tile Company v. City of Tracy
| Decision Date | 12 September 1919 |
| Docket Number | 21,377 |
| Citation | 176 N.W. 189,143 Minn. 415 |
| Parties | TRACY CEMENT TILE COMPANY v. CITY OF TRACY |
| Court | Minnesota Supreme Court |
Action in the district court for Lyon county to recover $3,817.66 for breach of contract. The answer alleged among other matters that the execution of the contract by defendant city was not authorized by any of the provisions of the city charter or the laws of Minnesota, and defendant had no power or authority to enter into or execute such contract. The case was tried before Olsen, J., who when plaintiff rested denied defendant's motion to dismiss the action, and at the close of the testimony defendant's motion for a directed verdict, and a jury which returned a verdict for $962.40. Defendant's motion for judgment notwithstanding the verdict was denied. From the judgment entered pursuant to the order for judgment, defendant appealed. Reversed.
Municipal contract -- charter provision applicable.
1. A provision of a city charter that, "every ordinance order or resolution, appropriating money, creating any liability of the city, awarding or approving of any contract for the payment of money * * * shall require a four-fifths vote of all the members of the city council," applies to a contract creating an obligation on the part of the city to furnish steam for power. Such a contract authorized by three of five councilmen is of no effect.
Municipal contract -- ratification by city council.
2. Such a contract, being one which the city had power to make, may be subsequently ratified. Ratification can only be by the city council acting as a body. It may be effected by any action or contract which gives to the contract the stamp of approval and this may be done by acquiescence with knowledge of the facts.
Municipal contract -- evidence insufficient.
3. The evidence of ratification in this case is insufficient. There is no evidence of knowledge on the part of the absent members of the terms of the contract.
A. R English, for appellant.
E. B. Korns and Seward & Molle, for respondent.
The city of Tracy, for some years, operated a municipal water and light plant, using steam for power. In October, 1911, it entered into a contract with plaintiff, by which it agreed to furnish plaintiff the exhaust steam from its plant for a period of three years at $20 a month. Upon the expiration of this contract negotiations were begun for a new contract and in October, 1914, a new contract was entered into for three years at $30 a month. The city continued to furnish its exhaust steam until November, 1915, at which time it sold its water and light plant to a private corporation. This corporation continued to furnish plaintiff the exhaust steam from the plant until July 1, 1916. At that time it installed an oil engine to provide power for its plant and after that time no exhaust steam was furnished. Thereafter plaintiff sued the city for damages for breach of its contract in failing to furnish steam for the balance of the three-year period covered by the 1914 contract. Plaintiff had a verdict for $962.40. Defendant appeals.
1. The city charter of the city of Tracy contains this provision: "Every ordinance, order, or resolution, appropriating money, creating any liability of the city, awarding or approving of any contract for the payment of money * * * shall require a four-fifths vote of all the members of the city council."
The contract sued on was clearly a contract creating a "liability of the city." It seems clear that an "ordinance, order, or resolution" authorizing such a contract must, under the terms of the charter, receive a four-fifths vote of all members of the council. The city council is composed of five members. The only action taken was as follows: On October 13, 1914, a "motion" was "made and carried that the mayor and recorder enter into a contract with the Cement Tile Co. for exhaust steam for a period of three years at $30.00 per mo." Only three members of the council were present so the motion could not receive a four-fifths vote. The action of those present was of no effect. It was as though no action had been attempted at all. Nevertheless the mayor and recorder entered into a contract to furnish exhaust steam for a period of three years and also to furnish electricity for light and power for the same period.
2. The contention is made that the contract, though not authorized, was subsequently ratified. The trial court took this view, and instructed the jury as a matter of law that, "by performing the contract and receiving the benefits therefrom for more than a year without objection, the city must be held to have ratified the contract and the contract must be held to be a valid contract." Whether the contract was ratified is the question now presented.
This was a contract which the city had the power to make. It is well settled that a municipal contract which a municipality has the power to make, may, although unauthorized, be ratified. Bell v. Kirkland, 102 Minn. 213, 113 N.W. 271, 13 L.R.A. (N.S.) 793, 120 Am. St. 621. Naturally it can be ratified only by the body which had the power to originally authorize it, that is, in this case, by the city council.
What constitutes ratification is a matter upon which courts have differed. A contract which the city had no power to make cannot, of course, be ratified at all. Bell v. Kirkland supra; Newbery v. Fox, 37 Minn. 141, 33 N.W. 333, 5 Am. St. 830; Andrews v. School District No. 4, 37 Minn. 96, 33 N.W. 217. When a contract which a municipality has the power to make has been performed, with the acquiescence of the municipality, and the municipality has received the benefit, it has been held that recovery may be had on quantum valebant. Laird Norton Yards v. City of Rochester, 117 Minn. 114, 134 N.W. 644, 41 L.R.A. (N.S.) 473; First Nat. Bank of Goodhue v. Village of Goodhue, 120 Minn. 362, 139 N.W. 599, 43 L.R.A. (N.S.) 84. This rule does not help us much here. If the statutes require that the contract be in writing, Leland v. School District No. 28, 77 Minn. 469, 80 N.W. 354, or that it be authorized by ordinance, Paul v. Seattle, 40 Wash. 294, 82 P. 601, or by resolution, Nash v. City of St. Paul, 23 Minn. 132, 137, or only at a meeting called in a specific manner, Currie v. School District No. 26, 35 Minn. 163, 27 N.W. 922, or that the contract be made in some specific manner, Smith v. City of Newburgh, 77 N.Y. 130; Bloomfield v. Charter Oak Bank, 121 U.S. 121, 7 S.Ct. 865, 30 L.Ed. 923, such requirements are mandatory and cannot be waived, and ratification cannot be accomplished without compliance with them. So where there is a requirement of some preliminary, as a preliminary estimate, City of Plattsmouth v. Murphy, 74 Neb. 749, 105 N.W. 293, or a preliminary application, Gutta-Percha & R. Mnfg. Co. v. Village of Ogalalla, 40 Neb. 775, 59 N.W. 513, 42 Am. St. 696; City of...
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