Superior City v. Ripley
138 U.S. 93 (1891)

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U.S. Supreme Court

Superior City v. Ripley, 138 U.S. 93 (1891)

Superior City v. Ripley

No. 1322

Submitted January 6, 1891

Decided January 26, 1891

138 U.S. 93

Syllabus

An acceptance by a municipal corporation of a draft, directing it to pay to the order of the payee a sum of money due to the drawer for work and labor done and materials furnished under a contract, constitutes a new contract between the acceptor and the payee which the latter may enforce in the courts of the United States if he be a citizen of a different state from the acceptor and if the amount be sufficient to give jurisdiction, notwithstanding the drawer and the acceptor are both citizens of the same state, and notwithstanding the provisions in the Act of August 13, 1888, 26 Stat. 433, c. 866, § 1.

If a contract with a municipal corporation calls for payment for work and labor and materials furnished under it in city warrants, and the municipality accepts a draft for a sum in money from the contractor in favor of the payee or order, without specifying that it is payable in such warrants, it is not necessary to allege, in an action on the acceptance, that demand was made payable in such warrants and was refused.

This was a writ of error to reverse a judgment of the Circuit Court for the District of Nebraska in favor of the defendants in error upon certain orders accepted by the City of Superior. The case was practically decided in overruling a demurrer to the petition, which set forth, in substance, the following facts

1. That the plaintiffs, Ripley and Bronson, were citizens of the Missouri, and the defendant, the City of Superior, a municipal corporation of the Nebraska.

2. That under an ordinance, regularly adopted and confirmed by a popular vote, the city entered into a contract with S. K. Felton & Co. for the construction of a system of waterworks for the sum of $25,000. That in pursuance of such contract, Felton & Co. built and completed the waterworks, which were accepted by the city on the 29th day of April, 1889, and that upon the contract price there was paid $5,000 October 13, 1888, and $3,681 December 14, 1888.

3. That S. K. Felton & Co. became indebted to the plaintiffs

Page 138 U. S. 94

for water pipe, hydrants and other material sold and delivered to them by the plaintiffs and used in said waterworks in the sum of $5,750, for which Felton & Co. executed the following order:

"SUPERIOR, NEB., Dec. 24th, 1888"

"Upon final completion and acceptance of waterworks by the City of Superior, Neb., pay to the order of Ripley and Bronson five thousand seven hundred and fifty dollars, and charge same to contract price and on contract for erection of said waterworks."

"(Signed) S. K. FELTON & Co."

"(Addressed:) To the Mayor and City Council,"

"City of Superior, Superior, Neb."

4. That said order was presented at a meeting duly called of the city council, and accepted by a vote of said meeting, and in pursuance thereof the mayor and city clerk, under the seal of the city, endorsed and accepted the said order as follows

"The City of Superior, Neb., hereby accepts the within written order, provided the waterworks are fully completed according to plans and specifications and are duly accepted by the city, and then in that event the City of Superior will withhold from the final payment of contract price that may be due S. K. Felton & Co. the amount of this acceptance, or such part thereof as may actually be due said S. K. Felton & Co. thereon, and will pay over such amount in city warrants to Ripley and Bronson in lieu of S. K. Felton & Co., such amount to be credited upon said contract price for said waterworks as if the same was paid to S. K. Felton & Co."

"Dated Superior, Neb., Dec. 24th, 1888."

"By order of the city council. C. E. ADAMS, Mayor"

"(City of Superior Corporate Seal) C. E. ADAMS, City Clerk"

And thereupon said S. K. Felton & Co. endorsed upon said order as follows:

Page 138 U. S. 95

"We accept and agree to above conditions the day and date hereof, and that this may be embraced in our contract with the City of Superior and be part thereof."

"S. K. FELTON & Co."

"Witness: Chas. E. Davis"

5. That the waterworks were completed by S. K. Felton & Co., and accepted by the city on the 29th of April, 1889, and that the city paid to S. K. Felton & Co. a large amount of money subsequent to the acceptance of this order in disregard of plaintiff's rights, and that there has accrued and become payable to them since said acceptance over $18,000, whereby the city became liable to the plaintiffs for the amount of their order.

To this petition the defendant city interposed a demurrer upon the grounds:

1. That it did not appear from said petition that the circuit court had jurisdiction of the subject matter of the suit.

2. That the said petition did not state facts sufficient to constitute a cause of action.

The court overruled the demurrer (41 F. 113), and, the defendant not desiring to plead further, rendered judgment for the plaintiffs in the sum of $6,061.87.

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