Marple v. Cooke ( 1916 )

Opinion by

Kephart, J.,

The general rule is well settled, and constantly enforced, that one who makes a contract with a municipality is bound to take notice of the limitations on its powers to contract, and also of the power of the particular officer or agency to make the contract on its behalf: McQuillan on Municipal Corporations, Vol. 3, Sec. 1166. Persons dealing with a municipality, through its agent, must know the extent of the agent’s authority, and unless the agent specifically engages to become liable on the contract, he cannot be as a general rule charged with responsibility. This rule, as it applies to the officers and agents of the City of Philadelphia, has been considerably modified by the Act of April 21, 1858, P. L. 385, Section 5 of which is as follows: “That no debt or contract hereafter incurred or made shall be binding upon the City of Philadelphia unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by councils; Provided, that persons claiming unauthorized debts or contracts may recover against the person or persons illegally making the same.” The act not only protected honest claimants, but it was likewise a protection to the municipality against the unauthorized acts of its officers. As stated by Judge Thayeb, “It furnishes the best protection which it is possible to devise, against the improvidence, the incompetency, and the dishonesty ......which are perpetually hiding themselves in the recesses of great corporations.” Later, the Act of June 1, 1885, P. L. 3T, 51 Art. 14, required all contracts to be in writing, signed and executed in the name of the city by the proper officers. This act adds another condition precedent to the life of the contract. It is not inconsistent with the Act of 1858, and does not repeal it. The requirements of both of these acts are mandatory. The city may invoke their protection when contracts have been attempted by its officers, contrary to their provision, but the officer or agent of the city, who illegally creates the obligation, cannot avail himself of the acts to be relieved of the liability imposed on him. He cannot assert that because of his failure to comply with the law there was no meeting of the minds of the parties nor no expressed intention on both sides to make a contract, and hence no “contract or unauthorized debt,” which under the acts, might be enforced against the officer or agent. The relation created by the Act of 1858 is somewhat similar to the common law liability of an agent who exceeds the authority conferred upon him by a principal. The officer, under the Act of 1858, becomes liable, because under these circumstances, the party dealing with the city has no recourse against the city, and the act recognizes that justice requires that the person who occasioned the loss should be made responsible. The act takes from the city’s agent the protection given by the common law. It appears from the record that the loss complained of was occasioned by and through the orders of the defendant; that the contract was not in writing, and council afterwards refused to make any appropriation to meet the expenditure. It does not appear that the plaintiff knew of the defendant’s want of authority. It is questionable, even if he had known, whether the defendant could escape liability. It is quite true that the city received the benefit of the contract, but this does not relieve the defendant from liability. The statement embraced all the elements necessary to recover under the Act of 1858, and the act in name need not be specifically pleaded. Assumpsit is the proper remedy in this State to enforce such statutory liability.

The assignments of error are overruled, and the judgment of the court below is affirmed.