Kerlin Bros. v. Toledo (City)

In this case Judge Barber directed a verdict in favor of the city at the close of the testimony. We think the petition does not state a cause of action. No fraud or deceit is charged, nor is it stated that the plaintiff did not know the quantity of pipe that the city had for sale. The city had power to sell the pipe it owned, but no authority to sell property it did not own. The plaintiff having paid the amount of the bid to the city, might under certain conditions have rescinded the contract, but we think the plaintiff did not have the right to treat the contract as if made by an individual, and sue for the value of the property not delivered. The city officials can not bind the city as to title or quantity. The judgment of the court of common pleas will be affirmed.