O'Neil v. Flannagan

Strout, J. Flannagan had a contract Avith the City of Portland to build a seAver. To protect the city, he gave it a bond Avith the American Bonding and Trust Company as surety, to perform his contract. To obtain this surety, Flannagan and Johnson, the present claimant, gave the surety company their bond" to protect it from loss on its bond to the city. In consideration of this liability, Flannagan assigned to Johnson the moneys to be received by Flannagan upon performance of his contract with the city. Flannagan failed to perform, and thereupon by arrangement of all parties Johnson completed Flannagan’s contract at a total expense much larger than the contract price for building the seiver. Johnson was at that time an alderman of Portland. When the Avrit Avas served on Portland, as trustee, there was due four hundred dollars under the Flannagan contract, but this amount resulted from Avork done by Johnson, after Flannagan had failed to perform and abandoned all attempt to fulfill his contract. Johnson claims this amount under assignment from Flannagan. Revised Statutes of 1883, c. 3, § 36, provides, — “No member of a city government shall be interested, directly or indirectly, in any contract entered into by such government, Avhile he is a member thereof; and contracts made in violation hereof are void.” Johnson’s liability upon his bond to the surety company made him interested in Flannagan’s contract, to have it performed and accepted by the city. This interest attached at the inception of the contract, Avhich is tainted by it. It is clearly within the inhibition of the recited statute. The provision is a wise one, and tends to honest [428] dealing, and exclusion of motive for improper practices harmful to the community. It should be applied without evasion to all contracts falling within its provisions. So applying it, the result necessarily follows that the city’s contract with Flannagan was absolutely void. Goodrich v. Waterville, 88 Maine, 39.. The contract being void, the city was never under any legal liability upon it. If Flannagan had completed the work contemplated by the contract, and it had been accepted and used by the city, it may be possible that he could recover compensation upon the quantum meruit. If so, neither the plaintiff in this case nor Johnson are aided, as Flannagan never completed the work, and the amount due, according to the terms of the contract, is for work done by Johnson after Flannagan had abandoned it, — and Johnson’s illegal connection with the contract barred him of all claim. The attempted assignment to Johnson of the amount due under the contract is of no avail, because the contract itself being void, nothing was legally due under it. The ruling below, that Johnson had established his right to the fund, cannot be sustained, but the decision that the trustee be discharged was correct. Exceptions to the ruling that Johnson was entitled to the fund sustained. Trustee discharged.