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sideration of a deposit of the amount. The pleader did not, however, stop there, but concluded with an allegation to the effect that the defendants converted the same to their own use, to plaintiff's damage of $350. The appellant's counsel claims that this allegation was the gist of the action, and that it sounded in tort; but it will be noticed that the plaintiff in the action stated imperfectly a cause of action without this latter allegation. The statement that the nioney was deposited with the defendants therein, as bankers, to be sent to the other banks, and that they failed to send said sums, contained a cause of action, though not stated with that definiteness and certainty requireil in a pleading. And the concluding portion of the complaint, “that there is now due plaintiffs from defendants the sum of $2,737.83,” is a make-weight towards establishing the claim as a debt. It may be argued with much plausibility, at least, that the action was for a wrongful conversion of the money; but I think it can be claimed with more reason that it was upon.contract for the payment of the money. At all events, it cannot certainly be inaintained that it was an action for a tort any stronger than that it was an action upon contract. If the original complaint had confessedly been in tort, I do not think it could have been amended so as to have validated the attachment; but, where a complaint is so indefinite and uncertain that its real character in that respect can not be determined, and the facts of the case are such that an action upon contract for the payment of money will lie, I think it can be amended so as to uphold an attachment that has been issued in the action. The plaintiff's attorney in said action very prudently filed an amended coinplaint therein, which removed the objection considered, and I think, under the view expressed, that he had the right to so amend the pleading.
As to the complaint in Webber & Foster's action, there can be no question but that it was upon contract. I think that it is too obvious to require any consideration. But the appellant's counsel contends that, in the amendment of Bingham's complaint, the amount claimed in the original complaint, and which the attachment was sued out to secure, was enlarged from $2,737.83 to $3,087.88, and that it had the effect to render the attachment invalid as against the appellant's attachment; and cites Willis v. Crooker, 1 Pick. 204; Fairfield v. Baldwin, 12 Pick. 388; Page v. Jewett, 46 N. H. 444. These cases seem to support the counsel's position; but it is claimed, in later cases, that there was an element of fraud connected with them which influenced the determination of the court therein. Felton v. Wadsworth, 7Cush. 587; Mendes v. Freiters, 16 Nev. 396. I do not know how a court would be able to conclude that an amendment of the complaint in an action in which an attachment had issued would operate to dissolve the attachment, although a greater sum was demanded in the amended complaint than in the original, if the amendment were allowed in furtherance of justice. The attachment is only collateral to the action. The amendment in such case has no connection with it, and an exercise of the right cannot possibly mislead a subsequent attaching creditor to his injury, as his right in the property attached is subject to such right of amendment. The Code provides that any pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering shall expire, (section 97, Civil Code;) and thereafter, at certain stages in the action, such amendment may be allowed by the court upon such terms as may be just and proper. It cannot be unlawful to exercise a privilege accorded by law, especially where it is secured and acted upon in good faith. If the amendment had been made for the purpose of obtaining an undue advantage over the appellants, it would present a different question, but there is not the slightest proof in the case that such was the object. On the contrary, it appears that it was in furtherance of justice, and that ought not to prejudice the said respondent. It is not shown from the record that the amendment included any new cause of action, or embraced any other claim than was contained in the original complaint, and I think it was virtually conceded on the arguinent that the discrepancy between the amounts claimed in the two resulted from an error of computation made when the original complaint was drawn.
The appellants' counsel also claims that it is not shown in the amended complaint that the cause of action alleged therein had acerned when Bingham's action against Danford and Ainsworth, in which the attachment issued, was commenced. The allegations therein concerning the $100 item are that on the fifteenth day of August, 1884, the defendants, in consideration of the sum of $100 to them paid by John Bingham, by their bill of exchange requested the Sea-board Bank of New York to pay said John Bingham $100 at sight; also that the bill of exchange was presented to said Sea-board Bank on the fifteenth day of September, 1884, for acceptance, which was refused; that it was protested, and had not been paid. And a similar statement is set out in regard to the $250 item. The counsel contends that these bills should have been presented for payment, instead of acceptance; that there are days of grace allowed on sight-bills, and therefore that the bills had not strictly been dishonored when the action was begin on the twentieth day of September, 1884. This question was before the circuit court in said action. It appears from the record that a demurrer was interposed on behalf of Danford and Ainsworth to Bingham's complaint therein, which the circuit court overruled, and awarded a judgment in Bingham's favor, which was rendered long before the appellants commenced their said suit. In giving judgment in the said action the circuit court necessarily determined that Danford and Ainsworth were liable upon said bills of exchange, and that decision cannot be reviewed in this proceeding. This court might impeach the judgment obtained in the said action for fraud, but it has no power to reverse it for error, except upon appeal therefrom. Consequently, whatever might be our view as to the correctness of the last point raised by the appellants' counsel, we can consider it only so far as it bears upon the matter of fraud alleged in the complaint. The respondents' claims stood upon the same footing as the appellants', and, so far as I can discover, are equally meritorious. They all arose out of the defalcation and rascality of Danford and Ainsworth, and one was as much entitled to payment, so far as I can see, as the other. The respondents gained an advantage in the matter by being first in time, and a mere irregularity in the proceedings to enforce them is not evidence of fraud. I am not prepared to say that their cause of action did not mature when the bills of exchange were presented, and the drawees refused to accept them; but, conceding that they should have been presented for payment, and the days of grace allowed before protesting them, it is a mere technical objection, which a court of equity cannot consider in this kind of suit, in the absence of actual fraud. I think the decree appealed from should be affirmed.
The chief justice concurs herein, except as to the effect of the amendment.
Upon a rehearing of this cause at the October term, 1886, it was held that, as it did not clearly appear that the difference between the sum claimed in the original complaint in the case of Bingham v. Danford anıl Ainsworth, and that claimed in the amended complaint, was the result of a mere clerical error, the lien of the attachment levied in said cause would extend only to the sum claimed in the original complaint. (14 Or. 3) NORTu Pac. LUMBERING & MANUF'G Co. 0. CITY OF East PortLAND.
(Supreme Court of Oregon. October 11, 1886.) 1. MUNICIPAL CORPORATIONS CONTRACT TO BUILD ROADWAY-WARRANTS IN PAYMENT
-FAILURE TO DELIVER WARRANTS.
Where a city agreed that, upon the completion and approval by it of an elevated roadway, it would deliver to the builders city warrants for a certain sum of money, to be raised upon the property abutting upon the improvement in payment for it, and the builders complied with their part of the contract, but the city failed to deliver the warrants, as agreed, held, that the city was liable for the contract price of
the improvement. 2. SAME-CITY CHARTER — AUTHORITY TO CONTRACT FOR IMPROVEMENTS — PAYMENT IN
Where a city charter authorizes the city to contract for improvements only by paying for the improvements by warrants against the property ahutting upon the improvenients to be paid for, a contract by which the city agrees to pay for an improvement from its general fund, whether an original contract or a niodification
of one authorized by its charter, is void. 3. SAME-CONTRACT FOR IMPROVEMENT TO BE PAID FOR UPON APPROVAL-CITY CANNOT
Where a city, by its contract, agrees to pay for an improvement upon its completion and the approval of it by the city, it cannot avoid its liability by delaying to approve the work when it is completed according to the contract. 8. R. Harrington, H. T. Bingham, C. Taylor, and A. R. Coleman, for appellant, City of East Portland. Williams & Willis, for respondent, North Pac. Lumbering & Manuf'g Co.
THAYER, J. The respondent is a private corporation, and the appellant a municipal corporation. The former began an action in the lower court against the latter to recover the contract price for building a certain bridge or elevated roadway in said city. The city in the outset contracted with one J. E. Bennett to do the work, and the respondent alleged in its complaint that Bennett, after furnishing materials and performing labor, assigned his claim to the respondent; that the appellant (the city) recognized the respondent as a party to the contract in the place of Bennett, and that thereafter the respondent and appellant, by mutual agreement, so moditied the contract that by the terms thereof, as so modified, the respondent was to furnish and put into said roadway, in addition to what had at that time been put into the same, four bents, which are described in the complaint; and that, upon the completion of the work required by the terms of the contract as so modified, the appellant was to pay the respondent the sum of $5,012 therefor; and further alleged in its complaint that it had duly performed all the conditions on its part to be performed of said contract, as so modified, and demanded judgment against said appellant for said sum of $5,042.
The appellant interposed an answer to the complaint, admitting certain formal parts thereof; also that it and one J. E. Bennett entered into a contract, by the terms of which Bennett agreed to furnish the material and perform the labor necessary for building the elevated roadway according to certain plans and specifications; but denied that it agreed to pay said Bennett therefor the sum of $5,042, or any other sum of money, except in accordance with the provisions of a certain ordinance of the city referred to in the answer, under which said Bennett, upon the completion of the work and its approval and acceptance by the common council of the city, was to receive city warrants, for said sum to be raised for the payment of the improvement, upon property abutting upon the street covered by the improvement, which ordinance and agreement are set out in the answer. pellant denied the assignment to the respondent of his claim, and denied the alleged mutual agreement between respondent and appellant modifying the original contract with Bennett, or that it agreed to pay the respondent, in consideration of any such modification, the sum of $5,042, or other sum; also denied that respondent performed the conditions on its part of the alleged modified contract. The appellant also set out in its answer the proceedings had, under which the contract was awarded to Bennett, which appear to have been in the usual mode in which contracts for the improvement of streets are let in the city of East Portland, under its charter; and also set out the acts it alleged took place between the city authorities and the respondent, claimed
by the latter as a modification of the Bennett contract, but which the appellant alleged was no more than an arrangement between the parties to do certain acts which were to operate as a compliance of the terms of that contract, said Bennett having utterly failed to perform it, and, especially, that it was no modification of the original contract, so far as related to the compensation and manner of payment as provided therein; that the common council had not passed upon the improvement, or ascertained whether or not the same had been constructed according to the plans referred to; and that appellant was not in default in the premises.
The respondent filed a reply, controverting many of the allegations in the answer, and alleging matter in avoidance.
The cause was tried by jury, who returned a verdict in favor of respondent, and against the appellant, for the amount claimed, and upon which the judgment appealed from was entered. The appellant made a motion in the circuit court for judgment notwithstanding the verdict, which was denied, and, as there is no bill of exceptions in the record, there is no other question before the court to consider than that raised by said motion.
Two important questions were discussed at the hearing. One of them was whether the action could be maintained against the appellant to recover the contract price for doing the work, in any event; and the other one was whether it could be maintained until the work had been approved and accepted upon the part of the appellant.
The ordinary mode of improving streets in the city of East Portland, under its charter, after the publication of the notice of the intended improvement, is to ascertain and determine the probable cost of the making of the improvement, and assess upon each lot, or part thereof, abutting upon the same, its proportionate share of such cost. The board of trustees is then required to declare the same by ordinance, and to direct its clerk to enter a statement thereof in the dockit of city liens. From the date of such entry the sum entered is deemed a tax levied thereon, and provision is made for its collection. This seems to have been the only mode by which the expenses for the improvement of a street could be raised. The city had no arbitrary powers to order the improvement of a street. It could only proceed in that direction upon the implied assent of a majority of the lot-owners whose lots abutted upon the portion of the street to be improved, and its iluthority in that particular is specifically pointed out in its charter. It can make no contract for the improvement, except in the manner indicated. The improvement is supposed to be a benefit to the lot-owners referred to, and the lots affected are charged with the cost of making it. The city occupies the relation in the affair more of an agent than a principal. It does not undertake to pay the contract price for making the improvement out of the general funds of the city. I do not think it has any power to enter into any such engagements for the improvement of a street. But it does undertake to perform all the acts required by the charter intended to supply the requisite fund to defray the expense attending it; and a failure to comply with any of the requirements of the charter by which the fund may be realized would subject it to a general liability. That was the case in Frush v. City of East Portland, 6 Or. 281. There the city diverted a portion of the fund from which the contract was entitled to be paid, and this court held that a general liability attached to the city in consequence.
In the case at bar it was the duty of the city, after ascertaining the probable cost of building the elevated road way, and assessing upon the lots and parts thereof abutting upon the same their several proportionate shares of such cost, to have issued a warrant for the enforcement of the payment of the various shares, and have realized therefrom the amount, or as much thereof as a sale of the various lots would have produced, and issued to the respondent a warrant for the payment of the contract price upon the completion of the improvement upon its part in accordance with the terms of the contract between the parties. The main contest at the trial of the case seems to have been that the action could not be maintained at all; that the respondent's remedy was against the officers of the city, to compel them to issue the warrants upon the special fund in payment of the rontract price for making the improvement; and counsel for the appellant contended, upon the hearing, in favor of that view, and cited authorities from cther states sustaining it; but there are other authorities that hold to the view herein indicated, that is general liability will attach in case the city fails to observe the various requirements of the charter by which the fund is realized, and this court must have adopted that view in Frush v. City of East Portland, supra, and I think we will be compelled to adhere to it. The appellant denied that the respondent had performed the contract, and that raised a material issue in the case, ind, had it been maintained by the appellant, it would have been a complete defense; but the jury seems to have determined otherwise, and we cannot review their finding, especially when no bill of exceptions has been sent up with the record. If the respondent had performed the contract, as it alleged in its complaint that it did, then the appellant had no defense except payment or a tender of the warrants upon the special fund, and a compliance with the requirements of the charter to realize it. The appellant undertook to do that, and in default thereof the right of action accrued to the respondent.
The respondent set up in its complaint a modified contract, and counted upon such contract. I am quite certain that this would have been fatal to its recovery in the action, if it were shown by the pleadings that the original contract had been changed in any material particular, and that its performance did not amount to a performance of the original contract. Such a contract can no more be modified by changing a material part of the original than a new one could be made without a compliance with the charter. The respondent's attorneys apparently tried to plead themselves out of court, but the attorneys for the appellant come to their rescue. They denied that the original contract had been modified, and it is impossible to determine, from the pleadings, that any material stipulation therein was waived or materially altered; and we must, after verdict, presuine in favor of the judgment.
The second question seems to have occurred to the appellant's counsel at the bearing. It appears from the answer and exhibits that the improvement was not to be paid for by the appellant until its approval and acceptance, either by the board of trustees or by other of its officers; and this is not denied in the reply, but it is alleged in the reply "that said roadway or structure was completed by the plaintiff, (respondent,) in accordance with the terms of said modified contract, on or before the fifteenth day of August, 1884, at which time, and ever since, the defendant (appellant) and her common council had due notice and full knowledge of such completion;" and that it was at the time of its completion, ever since had been, and still was, a better, stronger, and more substantial structure than that provided for or contemplated by the original contract, or than it would bave been if it had been coinpleted in accordance with the terms of said original contract only. If this is true, and we must presume it under the circumstances of the case, and the original contract not departed from, it was the duty of the city anthorities to accept the work within a reasonable time after its completion. The action appears to have been commenced on the twenty-sixth day of September, 1884, and the work is alleged to have been completed on the fifteenth day of August, same year. It was the duty of the common council to have approved or disapproved of it during that interval. I think there must be a distinction between a contract in which the work is not to be paid for until a certificate is produced from some third person, showing that it has been performed in accordance with the provisions of the contract, and one in which it is to be paid for upon its approval and acceptance by the party for