Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-10-19
THE NICHOLSON
The Cffy Of Memphis VS. J. T. Browns
Survivor, efc.-Bnls snd J.E Brown.
Survivor. etc. vs.. the City Of MEM
~psis-cross Btf1.
RereFf 81 the Special Master In Cham
Gerry, A. 8 Mitchell, Made 40 the
Court August 4, 1871.

cours August 1. 1871.
We were yesterday In receipt Of a print
cd copy Of the report Of Mr. A. s. Miteheu,
special master In ehanc6ry for the hearing
OF and decision in the above causes, and
from it take the following, which will be
read with interest by all Taxpayers:
"By the agreement Of counsel for the
parsies,I proceeded with the investigation
of the masters Of reference on the 2sEh day
Of May, 1871, and by ad5oufnments on di-
vers days thereafter, and was attended by
VIM. NJ. Randolph, Esq, City Attorney,
and Hon. John johnson, mayor, on the
part of the city Of Memphis, and by T. Z.
Brown, Esq, in person, and by s. Sibley,
Esq, his attorney. And / heard the state.
ment of the respective counsel, and re-
ceiyed their respective statements of &C.
count, and did write down or cause to be
written In my presence the evidence of all
the witnesses produced by both parties,
which was duly taken under cath, and
which evidence and sundry agreements of
counsel are herewith returned into the
court. Aud IN this report I hsve consid-
cred, with this evidence so adduced before
nee, all d dispositions heretofore taken
IN the cause, IS well as in the law cause Of
I. E. Brown q Cows. the city of Memphis,
and the plesdings In these causes, as well
also the pIeadings in tho said law action,
and the following are my conclusions:
First-I assume that the city govern
ment of Memphis Is competent By law to
contract for the paving OF its streets and
public highways and to pay for the same
out of the general revenue or credit of
the city. TIT city government exercised
authority of this sort in contracting TO
pay, Immediately and wholly, the city
bonds, for the pavement of certain streets.
A popular vote was invoked to indorse
the issue of bonds for this purpose, and q
majority ofthe qualified voters sustained
the proposition of the city government,
showing the people and their government
to be In accord in this construction of the
city's corporate powers.
As q corollary Of the city's power to pay
outright and in full for paving its streets,
1 infer its power to guarantee payment,
which Is only an agreement - pay in an
alternative.
Gecond-Thst having, through its c
nIzed and official organization determined
to pave the streets and highways, and en-
tered into formal contract with parties to
do said work, under the supervision Of
committees Of its legislative and execu-
tive officers and agents, all acts OF said
committees and executive officers and
agents, are the acts of the city, in SO far
as they are necessary and incidental to
and promotive Of the work committed to
their charge, and that such Gets do not re-
quire special reference TO and approval by
the entire government in its supreme OIL
cial capacity.
Third-I conclude that the paving con-
tracts entered into by the city of
Memphis with the various par
ties named, were regularly and
lawfully transferred from one contracting
firm to another, each time with the city's
- -@-,
licitati0n; and that 4. 4 Brown & Co.
now represent each and every Of said con-
tracts, asfully IS If they had been the orig
inal contractors in each.
F0urth-I find that T. z. Brown & Co,
tmeaning al of said contradictory performs
ed their work In sworkmsn-liks manner,
and TAR more expeditiously than could
reasonably have been demanded, seeing
that the payments for their work were al
ways largely in arrears.
Fifth-I find that all delays in the exe-
cusion of their work were caused primarf-
ly By failure of payment by property
holders and the city. and by the special
order OF the city engineer to suspend for
reasons given,
Sizh-I find that there was a total fall
ure of one Of the stipulations in the origi-
nal bond contract entered into with For
rest, Mitchell, q Co. the failure to provide
y . Ia 6[@ - E-C kd IL II ~
be paid out under said contract. This
feilure Of the city vitality affected the
value of ssid contrscs by reducing the
consideration raid for the work done not
less than 50 cents on the dollar.
and from that to 40 cents. I
have estimated the contractors dam
age az a little less than forty
cents. The evidence ustifss this finding.
Il is the more manifestly just in view Of
the delay of payment the contractors have
experienced, and the further fact that I
have allowed the city interest on its
claims. See depositions of Toby, Elder,
and others, bankers of Memphis: and
Lawrence Hstchfield and others, bankers.
of New York.
Seventh Il interpret the city's guar
snEee Of payment by the property holders
to be q guarantee Of payments of half
cash. and the rest in thirty, sixty and
ninety days, as stipulated in the con
tract: ss other1ise the payments would
lose entirely ths character of cash pay
ments; and the Guarantee become merely
the ultimate guarantee of the property it,
self instead of the immediate avsilsbis
guarantee of q supposed solvent corpora
ton. lind, therefore, that on the failure
OF the property holders to make the pay
es stipulated, the city beesms i'm
medistely Esble for the same, and 60 IN
should hsvs paid them.
Eighlh.-I find that the SO called re
lease OF the city from its guarantee Of the
payments by property holders. wss CO.
creed from Brown & Co. in their desperate
pecaniary straits, that theirs was no equal
consideration given for it, and that in
and good conscience it ought not
10 stand.
NInth-I find that even if this release
thus procured, could he held as binding.
It was only a conditional release. and thai
The city Of Memphis did not comply with
she conditions on which said release was
b city did not loan to I. e.
Brown q Co. the amount of $4,000 of
Oouds stipulated for, NOE did the city SUBJ
any thing else of equal value.
IeBth-1 find no proof that the city of
Memphis bas ever in its legislative capae-
ty, attempted or sought to repudiate It's !
said several paving contracts, and its obli-
cations Hereunder; nor claimed It's want !
If power to make such contracts; nor de- |
NED the acts or the power of its officers
md agents to do the several acts done nv |
hem in the carrying out Of such con
rscts.
EIeventA-I find the city issued its
GRIP to Taylor, Mclean & Co. as collateral
% its Indebtedness for paving, with power
sell, and credited them with the dis-
on the sale. prior to the purchase of
he contracts by 7. e. Brown & 90. who
inferred into said contracts on the faith Of
UGH statement of the prior accounts:
nd / conclude the city is now estonned
o plead it had no power by its oficsrs 10
nake such entries in its books and sueh
disposition of its scrip; sud such conduct
$ in bad faith toward those dealing
With It.
7uelNh.-I find the city was bound hv
Is contract to collect and pay over such
f the paving bills to the Contractors. ss
hey did not collect in ten DAYS: and thet
he officers of the city in charge OF tAs de-
artasnt of the city government having
Of such matters, requested
be contractors 7. f. Grown & Co. to make
UGH collections, and to retain counsel
herefore, and conclude the city ia La
lie to pay he reasonable value OF sueh
and expenditures, and that. hav-
received the benefit of such lsbors. il
estopped now to dsny the hire to its la-
orer.
TRirtesntA II and the city directed oer-
lin stoppages ofthe work ss il might do
y the contract, which may havedsmaeed /,
be contractors In the sum charged. but
proof Is not clear or positive In
mount, and have concluded 10 allow no
lore than $4,000 OF that sScount, |
F~oGrteenth.-T And the contractors wera
Otifed st the biddings thst thew .
ere not expected to adjust the street rail-
ay tracks 90 the pavement; shat the city
ad railway company made q special con- ,
for snch work on Main street. shat
q Besle and Poplar streets liks.work was I
one by the contractors, SIS necessary to
10 laying of the paving, I conclude the
ty Is liable for the fair value Of sroh
ork, and while there Is q great eondict ;
Z this point in the evidence. I have )
IN my calculation q price midway :
the extremes and a price I think In i
insicaliy right. !
F5sseHth-I have disallowed the charge :
r additional grading, including the
'oof lacked certainty concerning it. and
Iat it may have been included in the a.
for extra grading in the estimate =
tbs city engineer. !
SixteeatA-I ind that the city, for a az. :
of years past, has itself put its bonds
the market for sale, ana sold them at : :
seount exceeding fifty per cent. in ;
any cases. | End il has, in like manner.
u at like discounts, disposed of its \
sasury warrants or scrip; that ii has .
sued both a. collateral security to It's !
hts, with power to sell at great dis :
UNITS; that it has treated It's bonds. =
ties, and scsip as negotiable, marketa-
Q paper, and that it has been the con-
ant suejees Of barter and sale; that ali
p~ertAents Of the city government were
gnizsnt Of such proceedings, and know
ely used the procescs OF such sales. and
by legislative resolution the use
such negotiable paper for its financial 2
Ct such prices as it would COM a