Mayor & Council v. Wilmington City Railway Co.

S. D. Townsend, Jr., City Solicitor, contended (1) that the plaintiff could not waive by resolution (Exhibit No. 1) the requirement in the City Charter making it obligatory upon Street Railway Companies to pave the street bed between their tracks and for three feet on each side thereof; and (2) that the statute of limitations did not apply in this case; citing in support of said contentions the following authorities, viz: Seymour vs. Railroad, 44 Oh. St. 12; Bullard vs. Bell, 1 Mason 242; Outwater vs. Passaic, 51, N. J. L. 345; People vs. Hulbert, 71 Cal. 72; Andrew vs. Bacon, 38 Fed. 777; Redwood County vs. Land, Company, 40 Minn. 512; Jersey City vs. Sackett, 44 N. J. L. 429; Cowenhoven vs. Freeholders, 44 N. J. L. 232; Smith vs. Jersey City, 52 N. J. L. 184; Los Angeles vs. Ballerina, 99 Cal. 593. Argument of Walter H. Hayes and Ward and Gray attorneys for defendant: 1. This is not an action brought to enforce the performance of any duty imposed upon the defendant by law or otherwise; therefore the question of liability under the charter of the company does not arise in this case; as appears by the case stated and especially Exhibit No. (1); the city made an agreement with the defendant wherein the defendant agreed with the city “to pave and repave its tracks within the rails and for a space of two feet on each side thereof * * * or pay for the costs of the same if paved by the Street and Sewer Department;” under this agreement the plaintiff paved Washington Street and rendered to the defendant company a bill for the cost of that portion of said pavement between the tracks and for the space of two feet on each side thereof, which amount the defendant paid the plaintiff. This suit is brought to recover the cost of paving an additional foot on each outside of said tracks, the said paving having been done by the city. The relation existing between the plaintiff and the defendant as to the amount claimed, in this suit is a contractual one and the plaintiff is governed by the same rules of law as an individual would be in a like case. 2. The narr is in assumpsit and contains five counts, all of [46] which are the common counts. It has a bill of particulars attached, the amount claimed is $579.15 with interest from January 10, 1895. The counts are:—(1) Goods, wares and merchandise sold and delivered to the defendant by the plaintiff;(2) Work and labor done by the defendant for the plaintiff; (3) Money lent by the plaintiff to the defendant; (4) Money had and received by the defendant for the use of the plaintiff; (5) Money due plaintiff from defendant on account stated. The bill of particulars is as follows, viz: ‘Wilmington City Railway Company, Debtor To The Mayor and Council of Wilmington for work done through the agency of the Board of Directors of the Street and Sewer Department of Wilmington, Delaware: 1895, Jan. 10,To 1915.94 square yards of “Metropolitan Block” shale paviors pavement laid between and three feet outside of tracks on Washington St. bet. 11th St., and Washington Bridge $1.95.........-............... $3736.08' By cash for 1618.94 square yards of “Metropolitan Block” shale paviors pavement laid bet. and 2 ft. outside of tracks on Washington St. bet. 11th. St. and Washington Bridge.....................$1.95......................... $3156.93 Bal. due for 1 ft. outside of tracks ................................ $ 579.15” 3. The pleas are, (1) Non assumpsit; (2) Payment; (3) Release; (4) Act of limitations. 4. Issue has been joined on all these pleas. 5. The date fixed by the bill of particulars for the performing the work and for the furnishing of the materials in question is the tenth day of January, 1895. This action was brought to the May Term 1904. (The writ issued May 19, 1904) some nine years after the date mentioned in the bill of particulars. [47] 6. The evidence offered by the plaintiff in support of its alleged claim is principally a book, which purports to contain the items, in question, in an account made against the defendant. 7. While it is true that the Charter of the defendant provides, among other things, “that the said Company shall be required to keep the pavement in good repair within the rails of their tracks, and for the distance of three feet on each side thereof” Chapter 406, Vol. 12, Laws o Delaware, Sec. 9, page 430, that provision does not govern the application of the Act of Limitations to this case. This is an action on the case upon an implied assumpsit arising out of the/defendant’s alleged breach of a duty imposed by a statute, and the required performance of that duty by the plaintiff in consequence. This raised an implied obligation on the part of the defendant to reimburse and pay to the plaintiff the moneys expended in that behalf. The action is founded on this implied obligation, and not on the statute, and is an action of assumpsit. The fact that the duty which the defendant failed to perform was a statutory one, does not make the action one upon the statute. This action is clearly, in respect to the limitation, governed by the Act pleaded, viz., Chap. 123, Revised Code, Sec. 6, page 888. Kennebunkport vs. Smith, 22 Me. 445; Cinn. vs. Church, 8 O. 298; Cinn. vs. Evans, 5 O. St. 594; Evans vs. Erie Co., 66 Pa. St. 222-228; Carroll vs. Green, 92 U. S. 509-513; Met. Ry. Co. vs. Dist. Columbia, 132 U. S. 1-10-12-13. In this last mentioned case, which is one almost similar to the case at bar, the provision in the Charter was “that the said corporation hereby created, shall be bound to keep said tracks, and for the space of two feet beyond the outer rail thereof, and also the space between the tracks, at all times well paved and in good order, without expense to the United State or to the City of Washington.” Dist. of Col. vs. Woodbury, 136 U. S. 456; Boone Co. vs. Burlington R. R., 139 U. S. 684-593; Beatty vs. Burnes, 8 Cranch. 98-108; McCluny vs. Filliman, 3 Pet. 270- 277-278; Sinking Fund [48] Com. vs. Bikner, 48 Fed. 533; Shelby Co. vs. Bickford, 102 Tenn. 395-402; Harrison Co. vs. Dunn, 84 Ia. 328; Burlington vs. R. R., 41 Ia. 134. (The Court thereupon rendered the following judgment): “And now, to wit, this fourth day of. December, A. D. 1906, the above case coming on to be heard by the Court here and the same having been debated by counsel for the respective parties, at the bar of the Court, and the Court having maturely considered the same, it is considered ordered and adjudged by the Court here that judgment be entered in said cause for the defendant and against the plaintiff for six cents besides the costs in this suit expended.”