The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1904-03-11

ed to carry out and perform the condi
tions thereof and failed and neglected
to pave, curb, and gutter and otherwise
improve Broad street between Warner
street and Lincoln street, distance Of
about three blocks, embraced within said
plans and specifications and said con.
tract exhibit sc" and constituting al
least one-fifth of the entire work and
improvement. And plaintiff has never
offered or rendered performance of said
contract according to the terms thereof
and has never offered or rendered per-
Torrance of that portion of the work
abandoned and left undone as hereinbe-
| fore set forth.
| 20. That thereafter and ON or about
the first day of May, 1908, the common
council of defendant at the request of
plaintiff passed the following resolutions
| ''Be it resolved by the common council
of the city of Mankato that Broad street
in said city from the easterly line of
Warren street to Lincoln street be not
paved or improved as provided in that
certain contract made between said city
and the Barber Asphalt company and
that said contract in so far as it pro-
vided for such paving and improving be
cancelled and nullifed and said company
is hereby released from any and all liza
bility to so pave and improve said 'por-
ton of said street and any and all liza
bility for not paving or improving the
same" That at the time of the passage
of such resolution the said contract re-
ferred to in the resolution had been
abandoned voluntarily by the plaintiff
and all the rights Hereunder if any had
ever existed had been wholly forfeited
and annulled. That as hereinbefore al
legged the work according to the terms of
the contract was to be finished on or
before August lst, 1902, and that under
the terms of said contract, if the same
was valid, penalty of upwards of $1,000
due from plaintiff and payable to de-
PENDANT had accrued. That said resolu-
tion was adopted and said pretended re-
lease therein given wholly without CON
sideration, that at the time of the adop-
ton thereof the time for making such
improvement according to contract had
ling expired, the contract itself had been
declared null and void by court of
competent jurisdiction as hereinbefore
stated, the same had been abandoned
and forfeited by plaintiff and was null
and void by reason of such facts and said
resolution and the adoption thereof were
and are illegal, unauthorized and con-
trary to law and of no effect whatever as
to this defendant.
80. That prior to the commencement
of this action there was brought in the
district court of Blue Earth county,
Minnesota, court having general and
competent jurisdiction of the parties and
subject matter of the suit, an action
wherein Lester Patterson and others, res
idents and taxpayers of the city of Man
kato, Minnesota, and owners of property
abutting upon said improvement were
plaintiffs and the plaintiff in this action
was defendant, and that summons was
duly served upon the defendant in said
action, long prior to the commencement
of this action. That thereafter and
prior to the commencement of this action
such proceedings were duly had that the
defendant herein was duly brought in
and made defendant in said action.
That said action was brought against the
plaintiff herein and the defendant herein
for the purpose of having said contract
exhibit &c" declared null and void and to
nave OcClctu ClldU Cl1c
plaintiff herein was not entitled to re-
cover against the defendant herein un-
der said contract or otherwise and to
restrain the plaintiff herein from bring
ing any suit or proceedings whatsoever
for the purpose of recovering for the
work done upon Broad street or any part
thereof or from collecting or attempting
to collect for said work or any part
thereof and to restrain the defendant, its
officers and agents, from levying, col
lecting, appropriating or paying out any
moneys whatsoever to plaintiff herein
for the doing of such work upon the
improvement of Broad street under said
contract exhibit "C' or otherwise and
from levying or collecting any assess
ments, local or otherwise for such pur-
pose, and for other purposes all of which
more fully appears in the pleadings and
records of said cause. That as herein
before alleged both parties to this action
are parties to the action above mention
ed, that said action involves precisely the
same questions and controversy involved
herein, that determination of said &C.
ton will be full and complete deter
minat ton of all questions and issues in
ohlo dSClOh, Clldt ChC COhCIONCISy III odlu
action and the controversy in this &C
ton arises under and must be deter
mined by the laws of the state of Min
nesota, the public policy of said state
and the settled judicial construction of
the courts of said state. That the action
above mentioned has not been brought on
for trial and is still pending and un-
determined in the district court of Blue
Earth county, aforesaid, That by reason
of the facts aforesaid, this action was
prematurely brought and should be abat
ed and dismissed.
Wherefore the defendant prays that
this action be dismissed, that the plain
tiff take nothing herein and that defend
ant have Judgment against the plaintiff
herein, for its costs and disbursements,
and for such further relief as may be
just in the premises.