(209 P.) ant 10 days in which to file a reply. Subsequent to the filing of the reply, upon the petition of the relator, an amended alternative writ was issued. To this amended alternative writ the defendant answered, and to this answer the relator has demurred, upon the ground that the facts stated in the answer do not constitute any defense to the writ, or show any fact why the peremptory writ should not issue. The demurrer attempts to segregate the new matter alleged in the answer into separate parts, and to demur to each. We shall treat the demurrer as going to the entire answer. The facts alleged in the present writ are substantially the same as those alleged in the former writ. The brief filed on behalf of the relator states: (1) "That it was the payment of a part of an unliquidated, disputed claim and a receipt or release in full of the balance;" (2) "that it was a compromise, accord and satisfaction;" and that (3) "the ordinances and the release conit was a compromise, accord, and satisfaction, stitute a contract, and this contract recites that and, the contract being admitted in its very terms, the defendant cannot say that the transaction was otherwise than as recited." The contention that the transaction amounted to the payment of an unliquidated and disputed claim and a release or receipt in full for the balance cannot be sustained, because it appears very clearly from the allegations, both of the writ and of the answer, that the payment has not been made, nor has the release above referred to been delivered to or accepted by the city. It is alleged in the writ, and denied by the answer, that the relator had an unliquidated or disputed legal claim, or any bona fide claim against the city, or that he ever honestly believed that any sum of money was justly due or owing to him from the city. Thus the very question of whether or not the relator had, or in good faith believed that he had, such a claim as could, by the settlement thereof, constitute a consideration for a valid contract of compromise, is put in issue, and is a matter in dispute under the pleadings. "As we view it, there is only one question involved in this controversy, and that is whether or not, under charter powers of the city of From the allegations of the answer, which, Portland, the council has the authority to pay for the purposes of the demurrer, are admoral obligations existing against the city.".mitted to be true, it appears that the city The present writ in substance alleges that relator had an unliquidated, disputed claim against the city of Portland for an amount in excess of $36,702.84, which the city was under a legal obligation to pay; that the city offered to pay said sum as a compromise of said claim upon condition that the relator should execute a release, discharging the city from all obligations, legal, moral, or equitable, in favor of the relator and Pederson, and should place the same in the hands of a third party, to be delivered to the city when a warrant for said sum in favor of the relator was issued in payment thereof; that the city accepted said offer, and performed on its part by the passage of two ordinances, one of which authorized the payment of said sum to the relator, and the other appropriated the money for such payment; that the relator executed the release and delivered the same in escrow, and directed that it should be delivered to the city when a warrant was drawn for the payment of the money. Because the answer admits that the two ordinances were passed, and a release was executed and delivered to an escrow holder, the relator contends that the transaction in effect created a legal obligation upon the city to pay to the relator the sum of $36,702.84. In support of this contention relator's present brief says: has completely performed its contract, and that it has paid to Pederson and to the relator all and more than it contracted to pay; that a final receipt has been given therefor; that a full and complete adjustment and settlement has been had with Pederson and with the relator, and that Pederson and the relator have executed and delivered to the city a full and complete release, discharging the city from all claims and demands arising from or connected with Pederson's contract. It also appears from the allegations of the answer that the relator and Pederson, as well as Pederson's bondsmen and creditors, claimed to the city council that Pederson had lost large sums of money in fulfilling his contract, and urged the city to reimburse him in full or in part for the losses he had so sustained; that the city council were of the opinion that the city was under a moral, but not under any legal, obligation to pay a part of such losses; that the city council offered to pay to the relator the sum of $36,702.84 as a moral, but not as a legal, obligation, on condition that the relator should commence legal proceedings to obtain, and should obtain, a judicial determination that the city council had authority to pay said sum of money to the relator as a moral obligation, and not as one which was enforceable in an action at law. It also appears from the new matter al and the promisor's subsequent failure to carry out the agreement will not revive it. Where the new promise has been accepted as an extinction and satisfaction of the original liability, and the new promise has not been performed, the promisee has a right of to perform. Tuttle v. Metz Co., 229 Mass. 272, 118 N. E. 291; Frankfurt-Barnett Co. v. Prym Co., 237 Fed. 21, 150 C. C. A. 223, L. R. A. 1918A, 602; Kinney v. Brotherhood of American Yeomen, 15 N. D. 21, 106 N. W. 44; 1 C. J. § 23, p. 533; 4 Page on Contracts, §§ 2515, 2516. leged in the answer that, when the ordi-, the new promise is to be accepted as a subnances were passed and the release was ex-stitute in satisfaction of the original liabilecuted and delivered in escrow, it was stipity, the original liability will be discharged ulated between the relator and the city council that the relator should not be paid, nor should the rights of the city be in any manner prejudiced, or be in any way affect ed by the passage of the two ordinances above referred to, unless in proceedings to be brought by the relator it should be judi- | action against the promisor for his failure cially determined that the council had lawful authority to pay a purely moral obligation. [1] If the facts are as alleged in the answer, the city was under no legal, equitable, or moral obligation to reimburse the relator or Pederson, or the creditors and bondsmen of Pederson, in any sum or amount whatever. As disclosed by the answer, the offer was not an absolute one, but was conditional upon the happening of an event, and the condition upon which the offer was to depend has not been fulfilled. Therefore, as the condition upon which the offer was made had not been complied with, the city did not become obligated to any extent, nor did any right become vested in Pederson or the relator by reason of the passage of the ordinances and the execution and delivery in escrow of the release. [2] By the terms of the stipulation under which the council passed the two ordinances, and the relator and Pederson executed their joint release and placed the same in escrow, this transaction did not amount to an accord and satisfaction, nor did it result in any binding contract between the parties. "An accord is an agreement between two parties to give and accept something in satisfaction of a right of action which one has against the other, which, when performed, is a bar to all actions upon this account." Bouvier's Law Dict. p. 62. While "an accord and satisfaction is a method of discharging a contract, or settling a cause of action arising either from a contract or a tort, by substituting for such contract or cause of action an agreement for the satisfaction thereof and an execution of such substituted agreement." 1 R. C. L. bottom paging 177. [3] An accord is not a bar to an action on the original liability unless it has been followed by satisfaction. The original liability is not discharged by an executory accord, and, as long as the accord is executory, it is revocable at will by either party, and neither party can maintain an action against the other thereon. After a valid accord and satisfaction the original liability is discharged. To amount to a bar, the accord must be fully performed. If, however, the agreement is that the promise, and not the performance of the promise, is accepted as full satisfaction and extinction of the original obligation, then, in such a case, it amounts to an accord and satisfaction. In other words, if the agreement between the parties is that the original liability is to be discharged and that "Generally, but not universally, if the new promise be founded upon a new consideration, and is clearly binding on the original promisor, this is a satisfaction of the former claim; and otherwise it is no satisfaction." 2 Parsons on Contracts, § 683. From the allegations of the answer, as well as from the writ itself, it clearly appears that the transaction which took place between the relator and the city council did not amount to an accord and satisfaction, and, if the conditional promise of the city could be held to constitute an accord, under the authorities it was revocable by the city at any time before it was executed. [4] We are unable to agree with the contention that the answer admits or fails to allege any fact necessary to make a good and complete defense to the matters and things alleged in the writ. If the allegations of the answer are true, then no valid settlement of a disputed claim between the relator and the city of Portland has ever been made, nor has the city ever undertaken to pay the relator any amount of money whatever, except conditionally, and the condition upon which the payment was to be made has not been fulfilled. From the allegations of the answer it appears that, at the time the ordinances were passed by the city council the relator conceded that he had no enforceable claim or demand against the city, but that, as losses had been sustained in the performance of the Pederson contract, the city ought, on moral considerations alone, to partially reimburse Pederson and his creditors for a part of such losses, and that the council was willing to do so if it had lawful authority to assume and pay a moral obligation; that it was at that time stipulated and agreed between the relator and the city council that, if the council would pass the two ordinances in question, he would execute a full release to the city and place the same in escrow; and that the city auditor should thereupon refuse to issue a warrant in payment thereof; and that, unless in those proceedings it should be judicially determined that the council had lawful authority to pay an obligation which was moral in its nature, and (209 P.) to compel the city auditor of the city of Portland to issue a warrant until the condition on which the promise was made has been fulfilled. was not a legal obligation, then the relator was that this court will not assume jurisdiction to receive no sum of money whatever. These facts, if true and for the purposes of the demurrer they are admitted to be true-constitute a full and complete defense to the re lator's contention that, by the passage of the ordinances and by the execution of the release, a valid, enforceable contract was cre ated. The very basis for the enforcement of a contract, compromising a disputed claim, is that the parties should have acted in good faith, and that the transaction should be fair. To permit the relator now to take advantage of the acts done by the city in reliance upon his promises, without requiring a performance upon his part, would result in perpetrating a gross fraud upon the city. [5] In all contracts, whether of accord and satisfaction or the compromise and settlement of a disputed claim, or otherwise, it is essential to the validity of the contract that the minds of the parties have met in agreement with each other. There must be an aggregatio mentium, as otherwise the contract is not complete. The promise on the part of the city, as disclosed by the answer, was not an absolute one to pay the relator, but was one to pay upon the fulfillment of a condition. The relator now contends that the promise should be treated as an absolute, and not a conditional, one. This would violate the above rule, and would result in making a contract for the parties entirely different from the one which they made for themselves. The condition upon which the promise was based has not yet been fulfilled, and, until the event upon which the promise was conditioned happens, the contract is unenforceable. Under the understanding and agree ment, if, as set forth in the answer, the rights of the relator to the money have not yet become vested, and until the condition upon which the promise was made has been fulfilled, the city auditor is without lawful authority to issue the warrant, and his issuance of a warrant would be a violation of his official duty. The answer therefore states a good and complete defense to relator's contention that he is entitled to the issuance of a peremptory writ. [6] Without commenting upon the fact that courts pass upon concrete cases, and not abstract propositions of law, and ought not to depart from the universal rule that the duties and powers of courts are limited to the determination of rights actually controverted in the particular cases before them, and that this court is not the legal adviser of the city of Portland or of the relator, or upon the futility of an arrangement whereby the city council promised to pay to the relator a sum of money on the condition that it should be first judicially determined that, under the charter provisions of the city of Portland, the council had authority to pay a moral obligation, it is only necessary to say [7] In this connection it is suggested that because the stipulation recited in the answer attempts to limit the jurisdiction of this court to the determination of the sole question of whether the city has authority to pay out the public money in settlement of a purely moral obligation, it is not binding, for the reason that courts pass upon the facts appearing before them, and that the jurisdiction of the court cannot be limited by the stipulation of parties so as to deprive the court of its power to pronounce judgment upon all of the material facts in the case, and that no stipulation of parties or counsel can enlarge the power or affect the duty of the court in this regard. Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281, 37 Sup. Ct. 287, 61 L. Ed. 722. We agree to the soundness of the legal principle contended for. If the stipulation had the effect of preventing the court from passing upon the facts actually appearing before it, or of depriving the court of the power to pronounce judgment upon all the material facts in the case, then we would disregard such stipulation in so far as it had that effect. But the stipulation in question was not intended to have that effect. It was intended to limit and qualify the agreement of the parties. To the extent that it does so limit and qualify the agreement of the parties, it is our duty to give to the stipulation the effect which the parties intended it to have. The answer also alleges that section 148 of the charter of the city of Portland provides that: "The city of Portland shall not be bound by any contract nor in any way liable thereon unless the same is authorized by an ordinance and made in writing and signed by some person or persons duly authorized thereunto by the council. But an ordinance may authorize any board, body, officer or agent to bind the city without a contract in writing for the payment of any sum not exceeding two hundred fifty dollars ($250.00)." [8] The relator is attempting to enforce against the city of Portland an alleged executory contract, without alleging that this provision of the charter had been complied with. In this state the law is settled by an unbroken line of decisions that a compliance with the provisions of a charter such as this must be had before liability will attach against the city, or the city be bound by any contract not made in compliance with the provisions of the charter. Philomath v. Ingle, 41 Or. 289, 292, 68 Pac. 803; Beers v. Dalles City, 16 Or. 334, 336, 18 Pac. 835; Ward v. Town of Forest Grove, 20 Or. 355,' 358, 25 Pac. 1020; Richardson v. City of Salem, 51 Or. 125, 127, 128, 94 Pac. 34; Mac Donald v. Lane, 49 Or. 530, 90 Pac. 181; [ By these provisions, it is the duty of the Bridges v. Multnomah Co., 92 Or. 214, 222, auditor, before paying any demand against 180 Pac. 505. [9] The answer alleges that on December 14, 1921, the council of the city of Portland passed an ordinance repealing the two ordinances above referred to. This repealing ordinance recited the circumstances under which the two ordinances were passed and the conditions upon which their operation was to depend. The passage of this repealing ordinance was subsequent to the commencement of these proceedings. If, at the time the repealing ordinance was passed, the relator had acquired a vested right to have a warrant issued for the payment of said sum of money, the repealing ordinance might not be available to the defendant as a defense in these proceedings, since the city council would be without authority to destroy such vested right without the consent of the relator. But, if the condition upon which the operation of the repealed ordinances depended was as alleged in the answer, the relator never acquired a vested right to the money, and the city council therefore had authority to repeal the two ordinances, leaving to the relator his remedy in an action at law. the city, to satisfy himself that the money is legally due and that its payment is authorized by law. Until satisfied that the demand is legally due and is authorized by law, the auditor has no authority to draw a warrant in payment of any claim or demand. The duty devolving upon the city auditor to satisfy himself before paying any demand that the money is legally due, and that its payment is authorized by law, is one of great responsibility, and requires the exercise of highly important discretionary powers. In Naylor v. McColloch, 54 Or. 305, 313, 103 Pac. 68, 71, where the city council, without legal authority, had by ordinance directed the mayor to sign a warrant, and it was sought to compel the mayor, by mandamus, to sign the warrant, this court said: "We think that when, in the course of general supervision, he [the mayor] found that the counhis duty to refuse to give it a currency which cil had illegally ordered a warrant drawn, it was might mislead possible innocent purchasers into the belief that it was for the payment of a legitimate claim." We think that the principle that was applied to the facts in that case ought to be applied to those in this, so far as the duty of the mayor in that case and that of the auditor in this is concerned, and that the [10, 11] By the passage of the repealing ordinance, the authority of the auditor to draw the warrant was withdrawn, and, if the relator had a legal claim against the city, he had a right to enforce the payment thereof by an action at law. Our statute express-principle there announced should be controlly directs that the writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law. But we can see no reason, and none has been suggested, which would prevent the city council, after the passage of an ordinance which allows a claim and directs its payment, from repealing such ordinance at any time before the payment had been made. It would seem that such power must necessarily be inherent in the city council in order to prevent, in any proper case, an imposition upon the city through fraud, accident, or mistake. [12] Under its charter the auditor of the city of Portland is the "accounting and clerical officer of the city." He "shall approve no demand unless the same has been allowed by the officer, board, department, or committee required to act thereon." Section 276. "Every demand upon the treasurer except the salary of the auditor must before it can be paid be presented to the auditor, who shall satisfy himself whether the money is legally due, and its payment authorized by law." Section 278. "When liability for any claim presented is not sufficiently apparent to him, he may delay the payment thereof until such liability shall be determined." Section 279. "When any demand has been duly aproved and audited, the mayor and auditor shall draw warrants on the treasurer therefor." Section 280. ling here. When all of the provisions of the charter have been complied with, the drawing of a warrant by the auditor in payment of a legal, enforceable claim is a mere ministerial act; but, in a case like this, if the facts are as alleged in the answer, for the auditor to draw a warrant, whether the council pretended to authorize him to do so or not, would be a gross dereliction of duty upon his part. [13] The municipal charter of the city of Portland, like all other municipal charters in this state, is a grant, and not a limitation of power. The powers which may be exercised by a municipal corporation have been under consideration by this court in numerous cases, and the rulings of the court upon held in Beers v. Dalles City, supra, that— this question have been uniform. It was "A municipal corporation is called into being by the state for its own purposes, and it is endowed with that measure of power and authority which the act creating it confers, and such implied power and none other as is necessary to carry into effect the powers which are expressly enumerated and delegated to it. 'Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.'" * In a somewhat earlier case, Mr. Chief Justice Lord said, in City of Corvallis v. Carlile, 10 Or. 139, 141 (45 Am. Rep. 134): (209 P.) * "In construing the powers given to a munici- to appropriate money to pay the debts, liabilpal corporation by its charter, regard being had ities and expenditures of the city, or any for the ends to be accomplished, the courts have part thereof." The words "debts, liabilities inclined to adopt a strict rather than a liberal and expenditures," as used in the charter, construction of such powers, thus applying sub- clearly mean legal debts, liabilities, and exstantially the same rule that is applied to charters of private incorporations. * penditures, and not moral debts, liabilities, * They can exercise no powers but such as are exand expenditures. The council of the city of pressly conferred upon them by the act by Portland, under its charter provisions, has which they are incorporated, or are necessary no power or authority to pay out the public to carry into effect the powers thus conferred, moneys of the city in payment of any obligaor are essential to the manifest objects and tions except the legal obligations of the city. purposes of the corporation. * Any am- The payment of obligations not founded upbiguity or doubt arising out of the terms used by the Legislature, must be resolved in favorable in an action at law, are not within the on a sufficient consideration, and not enforceof the public." To the same effect see Naylor v. McColloch, supra; MacDonald v. Lane, supra; Robertson v. Portland, 77 Or. 121, 128, 149 Pac. 545; Chapman v. Hood River, 100 Or. 43, 51, 196 Pac. 467. [14] We think that, in conformity to the great weight of authority, the rule in this state is, a moral obligation is not a sufficient consideration to support an executory express promise, unless there has been an antecedent legal liability, which has become suspended or barred by operation of some positive rule of law, which extinguished the remedy, but not the debt, or where the promise has suffered some detriment in reliance upon the promise, or where the promisor has received an actual pecuniary or material benefit for which he subsequently expressly promised to pay. Nine v. Starr, 8 Or. 49; Rohr v. Baker, 13 Or. 350, 10 Pac. 627; Glenn v. Savage, 14 Or. 567, 577, 13 Pac. 442; Forbis v. Inman, 23 Or. 68, 31 Pac. 204; Kiser v. Holladay, 29 Or. 338, 45 Pac. 759; Meyer v. Livesley, 56 Or. 383, 107 Pac. 476, 108 Pac. 121; Parker v. Daly, 58 Or. 564, 114 Pac. 926, 115 Pac. 723, 34 L. R. A. (N. S.) 545; Rask v. Norman, 141 Minn. 198, 169 N. W. 704, 17 A. L. R. 1296, and annotation; 1 Page on Contracts, § 633. [15] In this case we are dealing with the council of a city whose powers to appropriate money are limited and restricted by the provisions of the charter under which they are acting. We are not dealing with the rights of a private individual, or of a corporation, or the power of the state Legislature, or of Congress, to authorize the pay ment of just claims supported by a moral obligation. By subdivision 20, § 73, of the charter, "the council has power and authority, subject to the provisions, limitations and restrictions in this charter contained * * express or implied powers of a municipality in this state. "It issues to remedy a wrong, not to promote one, and will not be granted in aid of those who do not come into court with clean hands." Sup. Ct. 37, 38 (58 L. Ed. 165); State v. Hare, United States v. Fisher, 222 U. S. 204, 209, 32 78 Or. 540, 153 Pac. 790, The duty sought to be enforced must be one which is legally defined. State v. Kay, 74 Or. 268, 145 Pac. 277. If the allegations of the answer are true, the relator is not entitled to relief by mandamus, or otherwise. The city was under no obligation to the relator, either legal, moral, or equitable. The council had no legal authority to pay or to promise to pay him any sum of money. He had been settled with once and paid in full, and had given his receipt therefor. He had, in addition thereto, executed a formal release forever discharging the city from all further liability. The release he now tenders could have no greater efficacy than the one he formerly gave and, if the council could lawfully pay him the sum of money he now demands, no reason could exist which would prevent a later council from paying him the remainder of his alleged losses. The council has no such authority. The answer states sufficient facts to constitute a good and complete defense to the writ. The demurrer is overruled, with leave to reply, if the relator so desires. MCBRIDE, J., took no part in consideration of this case. |