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CoGGSWELL 11. BOlIN.
llALrorOtiS PROSECUTION-AD'VtOE OP COtiNSlll...
Where one states fully to. his counsel bis, claim, and under such adviQe commences suit, he.fs not
is that be bas 8, oase, for malicious proaeeution.
Motion for aNew Trial. . Suit for mlilicious 'Bohn. '. ..
, 'by' 0; 'Coggswe1l against' Conrad , , ' " ; ': , for plaintiff. ' &&ymour, for defendant ."
NEr..sdN, J.Thiscasewas fairly'tried at the .June term, and resulted .There is nothing to indicate that the not give the case due consideration, and if the piainti1fwRs en':' titled to a verdict 'it, was given for an amount large enough. I think thCi' jury was right in not this plaintiff, who was under a large salliry, anything tor loss of time. The jury u,ndoubtedly thought $1,500 ,too attorney's fee.s· in the suit ofBohn v. (Joggswell, but allowed a Jair cOmpenSation, and also a just sum for traveling and expenses in Minne80tapreparing his defense. If dllfendant in this case stated fully to his counsel. his claimiIlthesuitagainst Cog-gswell, and was advised that he had a case,and the suit was commenced under such advice, his defense was complete, and the plaintiff was entitled to nothing. Evidently, th!;' jury' did not believe he did. The law' was correctly given on this branch of the case, and, as the testimoI}Y of himself and counsel was not in entire harmony, lcannotlll\Y that the jury erred., Motion for anew trial, denied.
in a snl!lll verdict for the plaintiff.
----"-COFFIN"
al.. fl.
erTY 01" PORTt.AND.
oouri. D. IfldlMus.
SePtember
26. 1890.)
: "'". . '," ' . ' , 'IVl'Ote to.the defend'"!t cit)" : ,IWlil will take your · · · .bOnds' *' .. ' *. at psr .yoll to 'fnl'IIl8b us wntten opinion 'Of your city attol'lley .,. to ,legality of bonds, "etc: :Hew" tbat the W,KI' on an opinion of theci,ty that the bonds and the Clty was not bOund by itealiCeptanoe. .'.' . ". . "',' .' . .' any
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'OD
"oD 'the passaJte or'adollttou of orreeQliltiou, t'iie yeallabli l1ays sballbe tall:en and entered ' 11 the t.6kil1g of a vote ,by yeas aml»ays is. aoolldltion,prec!tdjlnli t.o the ,QIaD oV qoUDOu., " f., ',' : .'
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, Cla1l'J1OOl & Ketcham,
to'
for plaintiffs.
John W. Smith and J. W. Headington, for defendant. WOODS, J. This is an for danlages for breach of contract. l'he plaintiffs, of New; Yprk, .claim to have made /I. .contract with the defendant, a city of Indiana. whereby the city agreed to issue its bonds for $14,000, which the plaintiffs agreed to takeatpar;<andthat,aft61' was made, only failed to, perform, but repudi.. agreement, by a resc'inding resolution of Common comlcil, and issued and sold the bonds to another party on better terms for the was a binding contract,it is evidenced by the proceedings of theccimmon council, a transcript of which is made an exhibit in complaint. It shows: That on the 7th. day of June, 1886,.the common council of the city in regular sessioll " by a unll-nimous an ordinance for the issue of 14 bonds of the city, each for ,000, for the, of of t?e municipality ata l:ss rate of interest andpaymg mdebtedm<ss whICh was about to become due; afterwards, on 'the 28th of the same month, at a regular session ofth8 council, "lhe following proposition, which is on file, but not a matter of record, was presented a.nd accepteq:" . "INDIANAPOLIS, IND., June 26, 1886. ,I. J. M. La FQlZeUe, Ma1JQT. j'o1'Uand, Ind.-DEAR SIR: We will take your fourtpen thousand "Ix ,cent. bonds, to be issued under see:tion 32aO. Rev. St. iSS1, at par, you to furnish us written opinion of your city attorney .I\sto legality of bonds, certified copy of council proceedings and dinance, ,certified statement of your city debts, assessed value of your taxables, ,v.alue, the amount of your present (approximate)
its
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sublllitted,
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COFFIN & STANTON", .· , " B y S. P'. SHERRIN.". ;
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. the iL2thdayof',July, 1886, in regular the council resolved "that 'the contract with Coffin and Stanton of the city of New York for the sale of $14,000 worth of city bonds, at par, drawing 6 per cent. interest,'a:nd 2 to 15 years, be and the same is hereby' rescinded, and be it hereby resolved that the propo.,apremi.um of 5 per sition of M. cent. be and IS l:iereby accepted."On the adoptIOn of tIllS resolution the vote is shq,W]8 nays. ", In behalf of the city it is contended that the proposition of the plainiifts to take the bonds WaSll?t .but upon the condition thaHM cit)t shorliLi Nirnish the citYattoi-ney lis'iq{the Yillidity'o(lhebondsj,'littd that the acceptance of the proposition by;the conditioh 'that the city attorney 'should, give , the required opinion ,and that uptiltbat was done there was no ,pa,rtfes, 1?utOljily a neg<;>tiation. On the'qther. hand, for the plaintiffs contend thattheir .pr9position wasncit that by accepting it the';6ityundertook tb furnish' the opinion,bound itself to do so, just as it bound itself t,o furpil1ha"certified copy of council of their city debts," proceedings and ordinance," a "assessed value of taxables," etc. ,;,,;l\',: ·< .\,:.)
I think it the clear meaning of the proposition of the plaintiffs that they should, have an opinion of the city attorney to the effect that the proposed bonds were valid, and that if an opinion to the contrary had been offered them, 'With the bonds, they would not have been bound to accept and pay for them. But while the statute (Revision 1881, § 3078) requires the city attorney to "advise the council upon all matters onaw which may be submitted to him in reference to the action of such council," the council has no authority to dictate what the opinion in any case shall be, and consequently has no power or right to enter into a contract whereby it will be bound to furnish an opinion of that officer of a prescribed character; and, if this contract requires that interpretation, it is Void. It is more reasonable to regard the proposition of the plaintiffs in this respect as being conditional, and the acceptance of it as being upon ,the'same condition. This being so, the plaintiffs ofcourse have no right ' of acHon. The complaint is obnoxious to another objection quite as fatal. The statute (section 3099) requires that "on the passage or adoption of any by-law, ordinance, or 'resolution, the yeas and 'nays shall be taken and entered on the record;" and in the case of Oity of Loganspcnt v. Crocketi, 64 Ind. 319, the supreme court of the state has held this provision to be mandatory. But neither upon the passage of the ordinance for the issue of the bonds nor upon the adoption of the resolution for the acceptance of the ,plaintiffs' proposition was the vote taken by yeas and nays. If,therefore, the city attorney had given an opinion on the subject,it would doubtless have been to the effect that the ordinance for the issue of the bonds had not been properly passed. ' , It is to be observed furtherthat the plaintiffs' proposition Indianapoliil,and presumably was sent by mail to the city clerk of Portland. It is not averred in the complaint that the plaintiffs were present in person;, 01' by agent when it was accepted by the council, nor ill it shown that the plaintiffs had been notified or had knowledge of the s.c,ceptaQce of their proposition before the rescinding resolution was passed, and the bonds were issned and, sold to another party: QntJItY, w.hether, if ,the proceedings had beEln, in all respects· regular, the, ,council· hjl,d,lwtja rightt9 rescind itsll,ction, 80 long as it had not in some way brought to the knowIEldge of, tpe . plaintiffs. See, lJwnn'B CaBe, L. R. 3 Ch. 40. The demurrer is sustained. .,,',
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II, 1888, Tequir. '1ng'WM aiter,itsb'l'idge over acertaiuli'iierso'that it would not'obstruct navigation. al}0mld l)le pl,II'Pose l/.ad expir.ed, the company was dlspos86ssed of. Its property, lDcludlng thebrldge, and receivers thereof \'I'ere appointed, in . 1j.uu;dfuhlli '.'1'0.c.eed'jng s. inil.t1tUltl.a bym.c . ' ol'tgage bondhOld.er.8" 'l'h6' Botke not havin.g . with, an against t:he and the company , to recover, tb,e fine Imposed in such caiel!.. Held, that the . , w'duldDot'l)eheld liable,1l8 'nQriOti(!6:bBd been .86rveQ in their oftlclal ea·" to they had. notice: company bad been alter the bridge. &/'. the statute required the notice to be S01"\100 on i lcorporatlonownin!f' or' c.ontrolllllgthe :objectionable' structure; and ,: :tb,e .fact it bad dispos86ssed gf its . property 'by Judicia! proceedlligs was a sUftl.clent excuse tot ita non-colDpbance with the notice. ., p.
, 'AtL8i,t;,!, ;:Thi'; uri action of debt: founded· on the ninethand tenth eectionsof the apprdp'rla.tion ofAugustU, 1888, (25 St. at Large, 424, 425;) The decllirlit>lon: shows that on 23, 1889'; notice was served on the St. Louis-t'Arkansus&Texa:g :Railroad Company'bj the honorable J'of'wai:' requiring it to' over the Francis river . L 1889, sothot·it would not be an obstruction to navigation; tMt June 24. 1889, the'defendants Fordyce and Swanson were appointelti 1lecei\'ers of the St. Uouis, ArKansss& TexlisRailway Company in the suit to foreclose certainmbrigages on the property of the rail'foad cClrfiln'Jliyf ;brough t by botldholdel'$, 'Imd that, as such retJrimedilltely tMk possession.of the' St. Louis, Arkansas. & Texas RaHrolidi1inciuding the bridge in question, and have since condnuedtooperate the road under the'orderso( this court; that 'the alterAtions WE're not'made as requirildby t:he order of the honorable secretary ·ofwal', and:itfoonsequence of suchdelault a penalty of $500 permontb, .as declltre'{I1 lbythesta.tute, is demanded.· The actiohis brought against the receIve}'s,; 'Fordyce and well as against the railway com'pany, ana· ttUofthe defendlmtsl1av4! 'denlurred' to' the' declaration. Geb.. Reyhbld8; U. S. , Samuel H. West, for THAYER, J., (oraUy, after Btating the Jacf.8 (l8 abnve.) The receivers clearly are not liable for the penalty imposed by the statute, because they have never been notified by the secretary of war to make any alteration in the bridge. It is wholly immaterial that the receivers had notice, prior to their appointment and acceptance of the office, that the railway company had been notified to make alterations in the bridge. The statute on which the prosecution is based rllquires notice to be served on the person or corporation owning or controlling the objectionable structure, be/ore such person or corporation can be held liable to a fine, and it is not pretended that the secretary of war caused any notice to be served on