U.S. Rubber Co. v. City of Tulsa
| Decision Date | 07 October 1924 |
| Docket Number | 14058. |
| Citation | 229 P. 771,103 Okla. 163,1924 OK 886 |
| Parties | UNITED STATES RUBBER CO. v. CITY OF TULSA. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
One who demands payment of a claim against a municipality operating under a charter form of government must show some provision of such charter authorizing it, or that it arises from some contract, express or implied, which finds authority in the general statutes of the state, and it is not sufficient that the performance of the contract for which payment is claimed is beneficial.
Whoever deals with a municipality does so with notice of the limitations on it or its agent's powers. All are presumed to know the law, and those who contract with it or furnish it supplies do so with reference to the law, and if they go beyond the limitations imposed they do so at their peril.
A contract not in its origin obligatory upon the corporation by reason of not having been made in the mode prescribed by the charter, cannot be affirmed and ratified in disregard of that mode by any subsequent action of the corporate authorities, and a liability be thereby fastened upon the corporation.
Where a verified general denial of all the allegations of plaintiff's petition is filed, with the further allegation in the answer to the effect that the defendant neither affirms nor denies certain allegations of the petition, but demands strict proof thereof, it is not error for the court to overrule the plaintiff's motion for judgment on the pleadings.
Commissioners' Opinion, Division No. 5.
Appeal from District Court, Tulsa County; Valjean Biddison, Judge.
Action by the United States Rubber Company against the City of Tulsa. From a judgment for defendant, plaintiff appeals. Affirmed.
John L Ward, W. A. Chase and George Paschal, all of Tulsa, for plaintiff in error.
I. J Underwood and Harry L. S. Halley, both of Tulsa, for defendant in error.
Plaintiff in error, hereinafter termed plaintiff, instituted this action against the city of Tulsa to recover a money judgment.
Plaintiff's petition alleges, in the second paragraph thereof, that the defendant is indebted to it in the sum of $7,426.70, with interest thereon at the rate of 6 per cent. per annum from January 1, 1921, for goods, wares, and merchandise sold and delivered by plaintiff to the defendant, at the special instance and request of the defendant. It was further alleged that the said purchase had been made according to the laws of the state of Oklahoma, and the charter and the ordinances of the defendant, city of Tulsa.
The third paragraph of the plaintiff's petition alleges that the said merchandise was sold and delivered to defendant on the dates set forth in Exhibit A attached to the petition and were of the reasonable market value of the sums set forth in the said exhibit; that they were received and used by said defendant, and the defendant thereby became liable to the plaintiff in the said sum of $7,426.70. Exhibit A, attached to and made a part of plaintiff's petition, is as follows:
The defendant answered with a verified general denial of the allegations of the petition, and further alleged that, as to the allegations contained in paragraphs 2 and 3 of plaintiff's petition, it had not sufficient information to either affirm or deny the same, and therefore demands strict proof of each and every allegation therein contained.
A jury was waived by the parties and the case was tried to the court on the 9th day of June, 1922, and, after the introduction of plaintiff's evidence, the defendant demurred to the evidence of plaintiff. The trial court took the case under advisement, and on the 17th day of June, 1922, plaintiff filed its motion for judgment on the pleadings and its motion to strike defendant's answer.
Thereafter, on the 27th day of June, the court overruled the motion to strike and for judgment on the pleadings, and sustained defendant's demurrer to the plaintiff's evidence, and rendered judgment for the defendant. Motion for a new trial was overruled, and plaintiff perfected its appeal to this court.
For reversal of the judgment, counsel for plaintiff, in their brief, submit the following propositions: First, that the defendant city is liable under the proof on an express contract, at least to the extent of the seven items in the sum of $420 each, as shown on Exhibit A, attached to the petition; second, that the defendant city is liable to it on an implied contract, it having accepted and used and received the benefit of the property described in plaintiff's petition, and that defendant is bound to pay the reasonable market value of the same; third, that the answer of defendant did not raise any issue, and that the plaintiff therefore should have had judgment on the pleadings.
Under the first and second propositions, plaintiff contends that the first seven items as shown by Exhibit A, aggregating $2,940 and interest, were brought, as shown by the evidence, strictly within the charter requirements of the defendant city in such cases made and provided. It is pointed out that none of these first seven items equals the sum of $500, and it is contended that the testimony shows there was an appropriation for that purpose ample to take care of the amount called for by the said seven items at the time the order was made, and that therefore the plaintiff is entitled to recover the amounts covered by the seven items referred to, on the basis of an express contract, and that, as to the remaining item of $4,200 and interest, plaintiff is entitled to recover upon an implied contract on a quantum meruit basis for goods had and received by the defendant city.
It will be observed that plaintiff alleged in his petition that:
"Said purchase having been in all things made according to the laws of the state of Oklahoma, charter and ordinances of the city of Tulsa in such cases made and provided," etc.
The verified general denial of the defendant city put in issue the allegation that this contract of purchase was made in accordance with the charter of the city of Tulsa. The charter provides that:
"No contract shall be entered into by the board of commissioners until after the appropriation has been made therefor, nor in excess of the amount appropriated, and all contracts shall be made upon specifications, and no contract shall be binding upon the city, unless it has been...
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