Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-07-02


Mayor and Fire Committee if it were nos
intended they should consult together?
Why consult, if they had nothing to con-
suit aboutS They are not vested with an
alteri.ate power, so that either could set if
the other were out Of the way; but the hr-
dinance requires them to act in coDjunc-
ton. The committee cannot execute the
contract without the consent of the Mayor,
nor the Mayor without the consent of the
committee. If the City Council had
understood themselves as having agreed
with Gamewell Il Co. upon all the details
OF the contract, and that all that remained
to be done was TO sign it, the appointment
Of dual agency to that mere manual act
would have been an absurdity. Il would
have been eomplicatins the ect without any
advantage TO result from IT, But if they
understood that the details of the contract
were to be settled by negotiation, then
there was an eminent prOpriety in the as
ISOLATION OF the Fire Committee with the
Mayor, that they might have the benefit Of
each others judgment, counsel and advice.
But let us suppose that such is not the
proper construction of the ordinance. Let
MS suppose that it is a complete acceptance
Of the proposition submitted-an accept
ance OF The proposition in all its terms as
made and submitted. and by consequence
the Proposition became d binding contract
between the relators and the corporation of
Nashville. Such q construction, as I con-
ceive, would not imprO the REALTORS
claims to the relief sought by this writ.
Upon such a construction the REALTORS
already have in advance what they seek to
obtain by this prOceeding-they already
have a clear, wellsdeined written contract
in the veIy terms of the contract they seek
to compel the execution Of, and, if this be
so, this application would be simply frivo-
loJIs and the contract submitted 10 the
Mayor of no real worth to them If the
Mayor had signed il. But if their p-opo-
sition has been accepted and become a CON
tract, then they have clear, full. adequate
and complete remedy by common law
action in the courts to recover damages for
the breach Of it if the corpO alton refuses to
perform its part Of it. and that is all the
remedy they would have If the contract
was signed; and If the contract were not
already in writing, but Nicely verbal, such
contract as that proposed in the PROPOSE
ton submitted would be as binding in
parol as by deed. The written contract. if
executed, would possess no intrinsic value.
II WOuid not be negotiable nor assignab'e.
1t would only be valuable as an instrument
of evidence if there should be cOnsc:t as
TO the terms of the contract. IL the cDrpO-
ration should fail to carry out the contract, |
the relatorS would have TO resort to the |
same remedy with the contract in writing
as if in parol, and the same evidence which |
would establish their right to written con-
tract, would establish their right to recover
without it. So that they would have a
complete, adequate remedy by common law !
action if the contract was merely verbal and |
without writing.
There is no analogy between this case |
and the case Of - vs.. Mobile and |
Ohio Railroad. In that case the relations |
being the owners of certificates which the /
railroad company were bound to take in |
payment of freight or passage, there was a |
very broad distinction between the right to |
require the company to accept them in pay |
ment and a right 10 sue the company for /
damages for not doing il. As was well |
said by the Supreme Court. the railroad |
company might be insOlvent and a judgment /
for damages of no value, but when the GER
tiicate is accepted in payment of the |
freight that ends the transaction, and it is /
immaterlal whether the railroad company /
IS solvent or insOlvent. But in this case
the REALTORS only remedy would be an &C
ton for damages for a breach Of the con-
tract, and this they could maintain as well /
if the contract is in parol as if in writing, |
the writing only being a convenient instru-
ment of evidence to prove the terms Of the /
contract, but parOl evidence may prove /
them with the same effect. The REALTORS /
remedy against the corporation for breach |
Of the contract being an action at law, and /
only an action at law, il is as complete and |
adequate with the contract in paTOl as in |
writing, which fact OF itself is a sufficient |
answer to a writ of mandamus.
The court added verbally, as part Of its |
opinion, that if the ordinance were to be /
regarded in the light OF a public law which |
imposed on the Mayor the official duty, in |
conjunction with the Fire Committee, of 4
executing a contract with Gamewell & Co.,
he ordinance did not require him 10 exc
ute the particular contract embodied in
5amewell x Cos. proposition, but only |
and directed him TO negotiate
with these parties and make a contract
With them if it could be done on what
might be regarded as satisfactory terms.
L was therefore discretionary with him
whether he would make q contract or not,
md the court could not control his dis
.rafion