Methodist Episcopal Church South v. Mayor of Vicksrurg

Peyton, C. J.,

delivered the opinion of the court:

The plaintiffs in error sued the defendants in the circuit court of Warren county, in an action of assumpsit to recover the value of 60,000 bricks alleged to have been sold and delivered by the plaintiffs to the defendants.

To this action the defendants appear and plead the general issue, non assumpsit. And upon issue taken upon this plea, the court found for the defendants. Whereupon the plaintiffs moved the court for a new trial on the following grounds:

1. Because the finding is contrary to law and evidence.

2. Because the court erred in not permitting evidence to be given of the statements made by M. Murphy, the overseer of the street work, which motion was overruled by the court, and new-trial refused, and to this action of the court the plaintiffs excepted, and bring the case into this court by writ of error.

It was an ancient and technical rule of the- common law, that a *605 corporation could not manifest its intentions by any personal act or oral discourse, and that it spoke and acted only by its common seal. This rule has since been relaxed, and corporations can now be bound by contracts made by their agents, though not under seal, and also on implied contracts to be deduced by inference from corporate acts, without either a vote or deed or in writing. This doctrine is generally established in this country with great clearness and solidity of argument; and the technical rule of the common law may be considered as being in a very great degree done away in the jurisprudence of the United States. 2 Kent, S48, top page. The English law is more strict on this subject. The general rule is still understood to be, that a corporation, though created by statute, cannot express its will except by writing, under the corporate seal. To this general rule there are certain excepted cases as follows: 1. Where the acts done are of daily necessity, or too insigniñeant for the trouble of a seal. 2. Where the corporation has a head, as a mayor, who may give commands. 3. Where the acts to be done must be done immediately, and cannot wait for the formalities of a seal, and 4. Where it is essential to a moneyed institution that they should have the power to issue notes and accept bills. East London Waterworks v. Bailey, 4 Bing., 283.

The doctrine of implied municipal liability applies to all cases where money or other property of a party is received under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do justice with respect to the same. If the. city obtain money of another by mistake or without authority of law, it is her duty to refund it, not from any contract entered into by her on the subject, but from the general obligation to do justice, which binds all persons, whether natural or artificial. If the city obtain other property which does not belong to her, it is her duty to restore it, or if used by her, to render an equivalent to the true owner, from the like general obligation, the law, which always intends justice, *606 implies a promise. As a general rule, undoubtedly, a city corporation is only liable upon express contracts authorized by ordinance or other due corporate proceedings. The exceptions relate to liabilities from the use of money or other property which does not belong to her, or to habilites springing from the neglect of duties imposed by the charter, from which injuries to parties are produced. Argenti v. San Francisco, 16 Cal., 255 ; 1 Dillon on Municipal Corporations, 476, sec. 384.

In Seagraves v. Alton, 13 Ill., 371 , the court held that a con-' tract was implied on the part of a city, which was bound to support its paupers, and which had refused to pay a person who had furnished a pauper with necessaries. Here it will be noticed that, there was an express refusal on the part of the city to. suport the pauper, and yet a promise was implied. This implication is a. pure fiction to support what the court regarded as a just claim.

It may be observed, that when it is sought to render a municipal corporation liable for the act of servants or agents, a cardinal inquiry is, whether they are the servants or agents of the corporation. If the corporation appoints or elects them, and can control them in the discharge of their duties, can continue or remove them, can hold them responsible for the manner in which they discharge their trust; and if those duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation in its local or special interest, they may justly be regarded as its agents or servants, and the maxim of respondeat superior applies. 2 Dillon, sec. 772.

It appears from the statement of E. G. Oook, which was read in evidence, that the mayor and aldermen decided to use the bricks of the burnt church for the city work, and would return the same number when called for, or pay the market value at. that time. The evidence establishes the fact, that some of the bricks were used for making culverts and for other city purposes by the direction of the mayor of the city, and under the superintendence of Murphy, who was the city overseer of the streets- *607 These were agents of the corporation, whose statements, under the circumstances, should have been received in evidence. The court erred, therefore, in rejecting them.

Upon the whole, we think the plaintiffs were entitled to recover from the defendants the market value of the bricks used for city purposes at the time they were taken and appropriated.

The judgment will be reversed and the cause remanded for a new trial.