Wimer v. Overseers of the Poor

Mr. Justice Trunkey

delivered the opinion- of the court, November 12th 1883.

The bond and release evidence an agreement between Wimer and the overseers of the district, that Wimer would pay fifteen hundred dollars in annual payments of one hundred and fifty dollars, for which the district would support Eleanor Ilines during life, and at her death provide for her burial. At the date of this transaction, Eleanor Hines, by due adjudication, was a pauper and a charge upon the poor district of Worth ; and Wiiner was bound by contract with her to maintain her during life, and at her death pay the expenses of her burial. It is admitted that the district maintained her while she lived, and paid her funeral expenses, and that Wimer has"paid to the district a sum more than sufficient to reimburse the amount so expended.

An act of a municipal corporation, done in an attempt to exercise power not possessed by it, is void. There is no distinction iu reason between the cases of entire absence of enactment conferring power, and a prohibition of its exercise beyond a certain limit. In one case power is not granted, in the other it is expressly withheld, and in each there is a total absence of authority: McPherson v. Foster Bros., 43 Iowa 48. The object of a municipal corporation is municipal government, and what this means is not learned from business usage, but from the legislation of the state. Hence there is a tendency to limit the contracts of municipal corporations much more strictly than the contracts of private corporations. But when a municipal corporation is authorized to perforin certain business duties, as to issue bonds or subscribe stock, it may be estopped by false recitals, as against bona fide purchasers: 1 Whart. Cont. § 143

Here there can be no pretence of legislative authority for making the contract. It concerns nothing but the care and support of a pauper, and the sole and entire duty of the overseers is to provide for the poor of the district. They could not relieve Wimer, wholly or partly, from his obligation to maintain the pauper during life; they had no right to exact from him a greater sum than reasonably necessary for her maintenance. Wimer obtained by his contract with the'overseers, an empty promise, binding neither them nor their successors in office. If they-obtained a promise in the bond for less than Wimer was already bound to pay, he was not relieved ; if for more, it is a speculation they should not be permitted to enforce. At the date of the contract it was the duty of the overseers to provide for the pauper and collect the expenses from Wimer. Where is the consideration for a promise to pay more than the expenses ?

Where a legal obligation exists, a cumulative promise to perform it, unless upon a new consideration, is a nullity. Such promise adds nothing to and takes nothing from the original obligation. Even a promise to pay a specific sum on account of a liability for unliquidated damages is invalid, unless the promise be conditioned upon some new consideration, such as delay or forbearance or release. A promise cannot be conditioned on a promise to do a thing to which a party is already legally bound; for instance, a promise to pay a witness extra fees for his attendance at court is invalid: 1 Whar. Cont. §§ 489. 500. See Robb Adm’r v. Mann, 11 Pa. St. 300.

The overseers were legally bound to do just what they agreed to do and all that they did for the pauper. Wimer was legally bound to pay all their expenses for the pauper, and he has paid them. This is not a simple question of capacity to contract where a party having had the benefit of a contract with a corporation attempts to deny its validity. Remark is unnecessary to distinguish it from the case of a party who borrowed money from a corporation and seeks to avoid payment on the ground that the corporation had no authority to lend the money. This is the case of a quasi municipal corporation created for the purpose of making necessary provision for poor persons within its territory, that did no more for a pauper than was required of it by law, that has received payment from one who owed support to the pauper, and from whom the distinct could lawfully collect the expenses, and that now seeks to recover a sum in excess of the expenses upon a void contract on the ground that it performed its part of the contract in the mere performance of its statutory duty. We are of opinion that the plaintiff is not entitled to recover.

Judgment reversed.