Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1861-06-12

JOHNSON rs. CRY OF INDIANAPOLIS. Appeal
from the Marion County G. G. PERKINS j.
johnson sued the City of indianapolis by the
name and style Of The Common Council OF the
City of indianapolis, for work done by him in
grading and crawling certain street i'll said city
after the adoption by the city of the general law
of 1852 for Incorporation of cities. The COM
plainant alleges that the Council, without any
petition having been filed for the improvement,
advertised for bids for, and let the grading and
graveng of Meridian street to the plaintiff upon
the bid presented by him; that the property hold
ers refused to pay because no petition was filed;
that the Council refused to make payment OH be
half of the city. A demurrer to the complaint
was sustained, and final judgment given for the
defendant. A question is raised as to the cor
porate name of the city. The act authorizing ex-
isting towns and cities to adopt its provisions as
their several charters does not prescribe name;
Il. S. p. 203. They would be authorized there
fore, and we may presume they severally did i'll
adopting the act, as charter, retain their cOrpOr-
ate names We do not know judicially what the
corporate name of city thus organized is more
than we know the names of individuals. Touch
ing the liability of the city, the charter under
which the work in question undertaken, pro-
yided that streets should be improved upon a
petition of two-thirds of the property owners
thereon; that the property holders should pay the
contractor for the improvement in each case eX-
cept street and alley crossings, and that the city
should not be liable to the contractors except for
such crossings. The charter a general law
of which the contractor was bound to take notice.
1t gave, as appears, to the City Council, but a
limited authority in the matter of street improve
ments, and prohibited the Council from binding
the city to pay for such improvements opposite the
property of an individual. OF this the contractor
was bound to take notice, and hence the duty de
volved upon him before he took the contract of
ascertainiDg whether the Council had 50 con-
Quoted the letting to render the property hold
ers liable. 1t was also his duty to satisfy him
self as to their ability to pay. City of New
Albany VS. Ramsey. l3 Ind 245. The industry
of the counsel for the city has collected the fol
lowing authorities bearing upon the case:
Prather VS.. City of Lexington, Is B. Monroe !;
Martin VS. Mayor, &C., Hill, $50 Metcalf VS..
Bockland, Al Maine, 36S Thayer VS.. City of
Boston, Is Pick, 5l3 Angel 4 Ames, $50
Mayor VS.. Cumliff, 2 Comstock, los McCill VS..
Stout, Abbott Pr. r., % Peterson VS.. Mayor
of New York, n. Y Com. p. Brady VS.. Mayor
Abbott Pr. r., 202; People rel. VS.. Flagg,
Abbott Pr R., 237; Smith on Court Con-, 79l f;
Kyle VS.. Malin, s Ind, 3S; Hodges VS.. City of
Buffalo, 2 DEMO. no. In Swift VS.. The City
of williamsburg "a Barbour, 407, the identical
question which arises in this case was considered,
and the Court held that it was the duty of the
contractor to examine the records in the office of
TIE CltV Olerh, anu aSceTtain WhctheT u peIiIlVn
had been presented For Indiana decisions see
Perk. Dig, p. 3l6. The case is a hard one, in
which the appellant, relying upon the integrity
and intelligence of the City Council in the dis
charge of its duties, has entered into a contract
which that Council. the agent of the city, had
no power, as the plaintiff was legally bound to
know or to make receive. The consequence
is that nobody, unless the members personally OF
the Council, are liable upon the contract. See
Aug. Ames Corp, p. %, ct. seq. The members
of the Council are personally liable if an ndivid
ual would be under the same circumstances. The
Judgment below must be affirmed with costs.