Cunningham v. Dunlap

Citations

• 242 Pa. 341
• 89 A. 129
• 1913 Pa. LEXIS 884

Syllabus

<p>Municipalities — Contracts—Cities—Ordinances of councils— Act of May 28, 1874, P- L. 280 — Payment for benefits received— Moral obligation — Practice, C. P. — Mandamus—Demurrer—Leave to traverse — Trial.</p> <p>1. The manifest purpose of the Act of May 23, 1874, P. L. 230, is to permit city authorities to pay for benefits actually received by a city, although not embraced or provided for in a written contract for municipal improvements. It enables a city to pay an honest debt to a contractor under a written contract if two-thirds of the membership of councils, with the approval of the mayor, feel that it ought to be paid as a moral obligation, though as a legal one it has no existence. But there is no authority in councils to direct extra payment for any work or materials which are included in a written contract with the city. For what is done under such contract the contractor can receive from the municipal treasury only what the contract stipulates is to be paid to him, and councils cannot give him more.</p> <p>2. Upon the trial of an issue to determine whether the sum named in an ordinance of councils, passed by a two-thirds vote under the Act of May 23, 1874, P. L. 230, to compensate contractors for alleged extra work, includes any items which the appellants were obligated to furnish under their contract for the consideration therein named, the ordinance will make out a prima facie case for the plaintiffs, but if it includes items covered by the contract, they must be deducted from the sum appropriated by councils, which is available to the claimants only for extra work done by them which was not included in nor contemplated by the contract and for which they have not been paid. For whatever may be so due them they will be entitled to be paid out of the appropriation, and a writ of mandamus will be the appropriate process to compel payment, if refused upon demand made.</p> <p>Pleadings — Demurrer—Practice.</p> <p>3. While a demurrer admits all matters suffici