Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1908-08-01
Court Holds in Tip
ton Case Lot Owners Not
Liable
CASES SAME
When Paving Assessment. Were SGT
Aside in Upton, Contractors SUED
Lot Owners as Barber Company Has
Done Here, and Court Holds Can
Not Recover Except by Taxation.

| The supreme court of Iowa has re-
Gently affirmed a decision of the dis
trict court of Cedar county, in a Tip
| ton paving case. which Is believed to
! be in effect a decision of the paving
! appeal cases, now pending from Mar
| shall county. favorable to the appeal
ers. In view of the decision of the
supreme court, it now seems that the
Barber Asphalt Paving Company would
/! stand to lose the entire amount it has
| invested in paving adjacent to the
unless it can sustain it's suits against
| the city.
! In Upton certain property owners
resisted their assessments for paving
| on the ground of performance of
contract and defective paving. In the
| district court they lost, but in the
supreme court they won, and the city
was prevented from levying their paw
| ing assessment. Then the contrac-
tors, Stauffer & Ford, sued the prop
erty owners for the value of the paw
| ing, as laid. and the supreme court
now holds that the contractor has no
right of recovery against the lot owner,
! implying that his contract was With
| the city. and that the only way the lot
owner can be made to pay is thru the
| regular tax levying machinery OF the
municipality.
1 In Marshalltown in the test cases
! Of the appealers, the Brown and Call
houn cases, the assessments were set
aside, one in Judge Caswell's court
| and one in Judge Burnham's court.
Then the Barber Asphalt Paving Com
pany sued the lot owners for the value
of the paving, and also sued the city.
In Judge Bradshaw's court the lou
| owners demurrer was sustained, ana
| the decision as to the demurrer is now
| in the supreme court, which has just
! held in the Upton case the same view
| of the law assumed by Judge Brad
shaw.
The city itself will now have to pay
for this paving If the Barber COM
panv ever RECEIVERS anything at all.
The decision of the supreme court
|
| After said decision was rendered
| thu contractors began this action IN
| equity against the defendants as own
ers of property which Adults upon the
| Improvement, and would have been u
able to assessment therefor but for tue
| decree Aforesaid The petition sets UP
| the letting of the contract. the per-
| fcrmanee OF the work, and the decree
of this court restraining the levy ana
| n,;iccticn of special assessments TO
4 pay the contract price. 1t alleges,
| howt YER that under the terms OF the
| plaintiffs contract with the city they
| had the right, in case their work
| proved Il. be in any respect defective,
| IN proper condis On under the direction
and oversight OF the proper city Off
cars. and that after the final decision
| in tho Ningcrt case, they served no.
| ia the NlnGert case, they served writ
| ten notice uron the city OF their readl-
ness and ability to proceed and per-
| form the work Of reconstruction, but
the city had ignored their offer. and
failed to designate or point out the
| work to be done.
They further allege that the reason
/
by them (referring. we presume, to
| that part of the pavement bordering
upon the defendants property was
and is reasonably worth $50, which
sum is due and owing to them from
the defendants, and they ask a person.
al Judgment therefore, and that 1t be
made and established as lien upon
! the property
TO this petition the defendants de-
/ INJURED, because the facts stated do not
| entitle plaintiff to the relief demanded.
Other special grounds were assigned,
| but it is not necessary to here set
them out. The demurrer being sus-
tanned, and plaintiffs electing to stand
on their pleading without further
| amendment, the petition was ordered
dismissed. at plaintiffs COSTS 1t is this
ruling we are called upon to consid-
err.
| We have carefully reviewed the re-
cord and arguments of counsel, and are
united in the opinion that the con-
! clusion announced by the trial court
is clearly correct. 1t is to be noted at
the outset that the city of Upton is
not a party to this action, and we can
ROT mere uIlueFtdhe W oeS4dG "ASeAiSA
anything remains unadiudicated be-
tween the appellants and that munich
pality with reference to their claim for
conversation The single inquiry now
to be answered is whether any right
of action is stated against the defend
ants here named as individual owners
of property within the Improvement
district, To sustain such an action it
would seem imperative that we find
some basis for it in contract. express
or implied, or in some statute Or such
statute can be constitutionally en-
acted) and, If no such basis can be
found, there can be no recovery. Most
certainly there has been disclosed no
contract obligation on part of the
property owners They did not employ
the contractors, nor did they in any
manner agree to pay the price agreed
upon between the contractors and the
city. They had no choice whether the
pavement should be laid, IL the city by
proper action saw fit to order it.While
in a certain vague and remote sense
IL is sometimes said that munich
palitv is the agent Of its people. no one
has ever gone to the extreme OF sug-
costing that it's agency is of such COM
prehensive character that its individ-
ual citizens may be heldspersonally IL.
able upon it's contracts or upon the
uuantum 1iieruit for the value 1t serv~