Goodall v. City

It appears that the improvement (McMillan street from Kibby street to Highland avenue) was made by petition. There were several petitions signed by various owners, some of which had incorporated within them a provision that in consideration of the city’s making said improvement and building an iron *429bridge over Hunt street, the petitioners agreed with each other and with the city, and jointly and severally bound themselves to make good to the city any deficiency in the collectibility of the assessment caused by insufficiency of values of property of those not signing this petition. In other petitions the foregoing provision did not appear. The city claims that it built said street and bridge in accordance with said petitions; that there have been deficiencies in the collect ibility of assessments caused by insufficiency of values of property of those not signing said petition, and that the amount of said deficiencies exceeds the amount of the assessment against Goodall’s property for said improvement. The city prays that if any reduction shall be made in said assessment there may be offset against said reduction the amount of plaintiff’s share of said deficiency.

It is admitted that three-fourths in number of the property holders did not sign said petitions, and that the value of the property is but $9.00 per front foot. The assessment is $11.09 per front foot. The record evidence in the ease shows that the improvement was at first refused because three-fourths of the property owners did not sign the petitions; that the petitions were sent back for new signatures and returned, and that the city engineer then reported that the necessary signatures had been obtained.

The course of conduct pursued by the city in connection with the petitions shows that it was the understanding and intention of both the city and signers that this work should not be attempted until the necessary legal number of signatures had been obtained. The contract at the end of the petition is to be read in connection with this practical construction placed upon the petition itself by the city — and so read, the' obligation to pay assumed by Goodall was conditional upon the work being properly authorized on the part of the city. The work on the part- of the city was not properly authorized because there was in fact a failure to obtain the requisite number of signatures; hence, no liability on the part of Goodall arose under the contract to indemnify the city against the losses of non-signers.

Decree for plaintiff.