City of Alton v. Mulledy

Walker, J. It is not claimed that this labor was performed under any express agreement with the city, but it is insisted that the circumstances are such that the law will imply a promise to pay by the city. The city employed the railroad company to construct a levee, and for that purpose authorized them to remove earth from Third and Fourth streets. The company employed defendants in error to perform the labor of constructing the levee, and they went into Langdon street and removed earth which was used in constructing the levee. They were notified by the agent of the company soon after they had commenced removing earth from that street, that the city had only authorized the company to take earth from Third and Fourth streets, but they continued to work in that street. The evidence shows that at the time the earth was removed from this street, it was more convenient to get earth in it, than the other streets, on account of the frost, and that the street was measured by the city engineer before they commenced the work, and some of the committee having charge of the improvement of streets, saw them at work on this street and made no objection, and it is under these circumstances that they seek to recover against the city, for this labor. The city, as an incorporation, could only bind itself for the payment of money for labor done for its benefit, by ordinance or by resolution, or it might by either of these modes authorize its officers or agents to make such contracts. The contract which was entered into by the city, was with the company, and not with the defendants. They were strangers to that contract, and must look to the company for compensation unless they can show a binding contract with the city. They have wholly failed to prove such a contract, nor does it appear any ordinance or resolution was ever passed by the common council, authorizing any of its officers or the committee, to make any contract for the improvement of the streets. The mere fact that the city engineer surveyed this street before the work was commenced, and that some of the members of the committee saw them at work there, without objection, does not raise an implied promise on the part of the city to pay for this work. These persons were only the agents of the city, and could exercise no power but such as they had delegated to them, and in the absence of such authority they could neither by express or implied agreement bind the city. Again it appears that it was for the convenience of the defendants that they removed this earth, at a time when they could not get it at the places where they were authorized, on account of the frost. So far as we can sec, they were trespassers and wrong-doers, in taking this earth. It seems to have been without permission from the city, and it was probably done in violation of city ordinance. The law never implies a promise to pay for a trespass, nor can a party force another to become his debtor, by performing labor for him against his will, or without his assent. If the defendants contracted with the company at too low a price, it is their misfortune, for which the city is in no way responsible, and cannot be held liable, unless it is by agreement, and the evidence fails to establish either an express or implied promise, on the part of the city, to pay for this labor. In no point of view can we see that the city is liable to pay for this work, or any portion of it. We are of the opinion that the evidence did not show a liability on the part of the city, and consequently no right of recovery by the defendants, and therefore the court below erred in not granting a new trial. The judgment of the Circuit Court is reversed and the cause remanded. Judgment reversed.