Worell Mfg. Co. v. City of Ashland

• Citation: 167 S.W. 922,159 Ky. 656
• Parties: WORELL MFG. CO. v. CITY OF ASHLAND.
• Decision Date: 19 June 1914
• Court: Court of Appeals of Kentucky

167 S.W. 922

159 Ky. 656

WORELL MFG. CO. v. CITY OF ASHLAND.

Court of Appeals of Kentucky.

June 19, 1914

Appeal from Circuit Court, Boyd County.

Action by the Worell Manufacturing Company against the City of Ashland. Judgment for defendant, and plaintiff appeals. Affirmed.

T. J Ewing and James A. Williams, both of Catlettsburg, for appellant.

John T Diederich and Donald H. Putnam, both of Ashland, for appellee.

CLAY C.

E. A Shepard was the city clerk of Ashland. On November 2, 1909 he purchased from the Worell Manufacturing Company, for use by the city, 60 gallons of Worell's insect exterminator, at $2 a gallon, and also 400 pounds of Cotto-Waxo sweeping compound, at 3 cents a pound, the whole order aggregating $132. On November 13, 1909, 11 days later, Shepard purchased an additional 60 gallons of the insect exterminator at $2 a gallon. The goods were shipped to the city in Shepard's care. Shepard agreed to see that the bills for same were allowed by the board of council on or before April 1, 1910. Before that time he was removed from office. The board of council declined to pay for the goods. Thereupon the Worell Manufacturing Company brought this action against the city of Ashland to recover the contract price. At the conclusion of the evidence, which failed to show that Shepard was authorized to make the purchase, the trial court directed a verdict in favor of the city. Judgment was entered accordingly, and plaintiff appeals.

The only error complained of is the refusal of the trial court to permit plaintiff to file an amended petition, pleading, in substance, that the city accepted, received, used, and consumed all of the goods set out in the petition, and thereby became indebted to plaintiff for the reasonable value thereof, which was fixed at $252.

The question sharply presented is whether or not a municipality may become liable on an implied contract. In the case of Trustees of Belleview v. Hohn, 82 Ky. 1, it was sought to hold the city liable for the expense of improvement work performed under a void contract. The court said:

"If the reception of work done under a void contract, or its ratification by the town, makes it responsible, then the provisions of its charter may be disregarded in every instance where the city has derived benefits from improvements made within its boundary, although its authorized agents may have failed, when making the contract, or passing the ordinance, to comply with any of the requirements of the charter. If the town is made responsible by reason of its inherent power to improve or make streets, then it follows that such a power must exist with reference to all improvements conducive to the welfare of the city and the necessities of those living within the corporate limits. The duties and powers of municipal corporations are prescribed by statute, and to make them liable, like natural persons, would be to license those who are invested with corporate control to place onerous burdens upon the inhabitants in the way of taxation and otherwise, regardless of the powers and restrictions found in the charter, and by which alone the rights of the corporation must be determined. Courts have found it necessary to execute the powers expressly granted, and to refuse to make corporations liable upon implied promises by reason of benefits received. This is done for the protection of the inhabitants of the corporation, and because the only power the corporation has is from the law creating it, and, instead of recognizing a more liberal rule, the courts are inclined to hold corporations and their agents within the letter of their grant."

In the case of Murphy v. City of Louisville, 9 Bush, 189, the same question was presented, and the court said:

"Nor is the corporation liable for the value of the work by reason of any implied promise to pay, upon the idea that the city derived a benefit from it. If so, as previously argued, it would dispense with the exercise of the power conferred by those in authority to execute contracts, and the contractor, or the party performing the work at the instance of any official of the corporation, or even inhabitant of the city, could make improvements beneficial to the corporation, and thereby create an implied contract on the part of the city to pay. If the alleged contract is made otherwise than as required by the ordinance, it is not binding; and, if not obligatory as a contract, the law creates no promise to pay. The difference between the contract of a private person and that of an officer of a corporation is this: An individual has the right to make, alter, or ratify a contract at his own will and pleasure with the consent of the party contracting with him, or, if he stands by and permits others to work for him, and accepts the work, the law implies a promise to pay its value; while an officer of a corporation has no power to make a contract, except in the manner pointed out by the statute from which the power is derived. Zottman v. San Francisco, 20 Cal. 96 .

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