Jones v. City of Portland , 35 Or. 512 ( 1899 )

Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

The record contains several assignments of error, but they are all directed to the questions — First, whether, under the allegations of the complaint, the. plaintiff is confined to proof of negligence in attempting to collect the assessment against the property abutting on Spokane Avenue ; or second, may a recovery be had on the ground that the proceedings are void and of no effect, because of a failure to comply with the provisions of the charter in reference to the improvement of a street, the cost of which was to be assessed against the abutting property?

1. Whatever confusion there may be in the authorities elsewhere, the holding of this court is that, where the expense of improving a street in a city is to be paid from a special fund to be raised by an assessment on the abutting property, a failure of the municipality to' comply with any of the requirements of the charter essential to supply such fund (North Pac. Lumbering Co. v. City of East Portland, 14 Or. 6, 12 Pac. 4; Little v. City of Portland, 26 Or. 235, 37 Pac. 911), or any unreasonable delay in enforcing such provisions or collecting and paying over the money (Commercial Nat. Bank v. City of Portland, 24 Or. 188, 41 Am. St. Rep. 854, 44 Am. & Eng. Corp. Cas. 486, 33 Pac. 532), gives the contractor a right of action ex delicto against the corporation for damages, in which he is entitled to recover the amount due under the contract, with interest, notwithstanding a provision in the contract that he shall look for payment only to the special fund, and that he will not require the municipality, by any legal process or otherwise, to pay for the same out of any other fund (Commercial Nat. Bank v. City of Portland, 24 Or. 188, 41 Am. St. Rep. 854, 44 Am. & Eng. Corp. Cas. 486, 33 Pac. 532). If, therefore, the City of Sellwood failed to comply with any of the requirements of the charter authorizing the improvement of the street at the expense of the abutting property, by reason of which the special fund for the payment of the contract price cannot be raised, or if there has been any unreasonable delay by it or the present defendant in enforcing such provisions, or collecting and paying over the money, the plaintiff has a valid cause of action against the defendant for the amount remaining due and unpaid after, the contract.

2. But it is claimed that by its complaint the plaintiff has limited its right to recover to a failure of the defendant to exercise reasonable diligence in collecting, or attempting to collect, assessments made upon the abutting property, and is not entitled to recover because of the invalidity of such assessments on account of the failure of the city to comply with the provisions of the charter. It is the settled law in this state, as elsewhere, that a plaintiff cannot allege negligence in one particular, and on the trial prove and recover upon another, but that, where the complaint specifies the particular act of negligence relied on, the trial must be had on the issues thus made: Lieuallen v. Mosgrove, 33 Or. 282 (54 Pac. 200). But where the complaint contains a general allegation of negligence, and the defendant, without moving to make it more specific, joins issue, proof of any negligence within the general scope and purpose of the allegation is competent, and may be the basis of a recovery : Wild v. Oregon Short Line Ry. Co., 21 Or. 159 (27 Pac. 954). The allegations of the complaint are not very specific or certain, but, by a fair construction, we think they are broad enough to include proof of the failure of the defendant to comply with the provisions of the charter, or of any unreasonable delay in the performance of its duty in that respect.

3. After alleging that it was the duty of the City of Sellwood and defendant to collect from the various holders of the property abutting on the avenue the several and various sums ascertained to be the cost of making the improvement, it is alleged, in substance, that they have each failed and neglected to perform such duty, and have not collected from the property, or the owners thereof, any money for such-purpose, and are making no attempt to do so. This is practically and in substance an allegation that the defendent has failed and neglected to provide the fund for the payment of the warrant owned by the plaintiff, and is making no effort in that direction. We are, therefore, of the opinion that the plaintiff was entitled to recover in this case if it appeared that the attempted assessment was in fact void, so that no title could have been conferred upon a purchaser at the sale attempted to be made by the defendant.

4. It is contended that, in a case of this character, the burden of proof is upon the plaintiff to show that the defendant has failed and neglected to observe the several provisions of the charter authorizing it to raise a special fund for the payment of the cost of the improvement. As we understand the law, the plaintiff made a prima facie case when it gave in evidence the ordinance authorizing the contract with its assignor, the contract itself, with proof that it had been performed and the work accepted by the municipality, the issuance of the warrant, and the failure of the city for four years to provide the special fund out of which it is to be paid. The burden of proof was then on the defendant to show that its failure to provide such fund was not owing to any neglect on its part in complying with the several provisions of the charter, or in exercising reasonable diligence therein : Morgan v. City of Dubuque, 28 Iowa, 575.

5. It is insisted that a recovery cannot be had in this case for the reason that the warrant issued by the City of Sellwood to the plaintiff’s assignor does not provide in direct terms that it is to be paid out of the special fund for the improvement of Spokane Avenue. This objection is without merit, because, in the first place, no such defense is made, nor is it claimed that the defendant refused to pay the warrant on that account; and, in the second place, it is apparent from the face of the warrant that it is payable out of such fund, because it is issued in payment of lumber for the improvement of Spokane Avenue, and there is no claim that the city intended to pay for such improvement out of any fund except the one to be raised by assessment upon the abutting property. It follows from these views that the judgment of the court below was fight, and must be affirmed.

Affirmed .