McManus v. The Ophir Silver Mining Company.

In the case at bar no demurrer was interposed, but the defense rests upon an answer pleading payment, which is in effect a plea of confession and avoidance; and by this plea or answer all mere formal objections to the complaint were waived. The defendants, by the mode of defense they adopted, must be held to an admission of the direct averments of the complaint, and such as the law implies from the matters therein expressly stated, with the exception of the allegation of indebtedness, which is met by the plea of payment.

We think the defects of the complaint are of such a character as to be cured by the defendants' pleadings and by the verdict. Nor are our conclusions in this respect unaided by authority. "There are many cases," says Chitty, "in which it has been held that where a particular fact has been informally alleged, and the opposite party in pleading over admits the particular fact, either by pleading to some other matter alleged in the defective pleading or by pleading in confession and avoidance of the matters so informally alleged, the defect will be aided by the admission resulting and to be collected from such subsequent pleading." (1 Chitt. Plead. 672.) And in respect to the statement of the consideration, and what defects will be aided by intendment after verdict, Peters, J., in Hendrick v. Seeley (6 Conn. 179-80) deduces from Chitty the following rules: that "where no consideration, or an insufficient or illegal consideration is stated, the defendant may either demur, or move in arrest of judgment, or support a writ of error; but after verdict, a defective, informal or uncertain statement of a consideration not apparently illegal may be aided; and where the consideration is untruly stated, or a part thereof is omitted, the objection can only be taken on the trial as a ground of non-suit. * * * And after verdict, if the issue joined be such as necessarily to require on the trial proof of the facts defectively or imperfectly stated, or omitted, and without which it is not to be presumed that the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict at common law. In short, the Court will infer almost anything after verdict."

Such are the views of all the best elementary writers on com

McManus v. The Ophir Silver Mining Company.

mon law pleading, and whatever may have been the influence of English statutes of jeofails, and amendments on more extreme rulings found in the books, it will be observed that Secs. 70 and 71 of our civil code have even further liberalized the rules of construction applicable to pleadings, not only embracing the whole of the English statutes of jeofails and amendments, but go somewhat beyond, and may perhaps aid cases which the earlier statutes could not reach.

Counsel for appellants refer to the case of The California State Telegraph Co. v. Patterson (1 Nev. 150) in aid of their appeal. No point decided in that case has any direct bearing upon this, and so far as any general proposition is stated in either of the opinions pronounced therein, they are opposed to the theory on which appellants rest their objections to the complaint in the case at bar. And so far as we can discover, the other authorities cited by appellants' counsel are not opposed to the action had in this case in the lower Court.

The statute before referred to, Sec. 71 of the Practice Act, provides that "the Court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect. "This," says Van Santvoord, "furnishes a single test in all cases, a broad and universal test, namely: that if the defect is such as in the opinion of the Court will not affect the substantial rights of the adverse party, no matter in what that defect shall consist, the judgment will not be reversed or affected. thereby." "It is but applying to the action in its last stages the rule which the code designs to govern its commencement, and to regulate its proceedings throughout, namely: that the action is to be stated, tried and determined on its merits alone, and that the substantial rights of the parties, and they alone, are to be regarded as controlling the administration of justice under the form of law." (1 Van Santv. Plead. 834.)

Our conclusion is that there is no error shown in the proceedings in the District Court, and its judgment is therefore affirmed.

Tucker v. Mayor and Board of Aldermen of the City of Virginia.

J. C. TUCKER, APPELLANT, v. THE MAYOR AND BOARD OF ALDERMEN OF THE CITY OF VIRGINIA, RE

SPONDENTS.

POWERS OF MUNICIPAL CORPORATIONS. Municipal corporations have no powers but those which are delegated to them by the charter or law creating them, and the powers expressly given and the necessary means of employing those powers constitute the limits of their authority.

POWER TO EMPLOY NECESSARY MEANS. When power to do a certain thing is conferred, or a duty is imposed upon a corporation, and the manner of exccuting the power or discharging the duty is not pointed out, the corporation may employ all the means necessary to that end.

POWER TO MAKE NECESSARY CONTRACTS. Where a municipal corporation was authorized in general terms to elect a city physician, establish a city infirmary, provide for the indigent, and make all necessary contracts and agreements for the benefit of the city, and there was no infirmary belonging to the city: Held, that it was competent for the corporation to contract for the care and maintenance of the indigent sick at a private hospital. POWERS LIMITED TO SPECIFIC OBJECTS. Power in a municipal corporation to make all necessary provision for the maintenance of the indigent and for medical attendance upon them, does not authorize the furnishing of medical attendance for the police or other city officers, who are not indigent.

POWER TO PRESCRIBE DUTIES OF OFFICERS. If a municipal charter authorizes the election of a city physician, but does not prescribe his duties, the corporation has the power to declare what such duties shall be.

QUANTUM MERUIT AGAINST MUNICIPAL CORPORATION. If a municipal corporation, having the power to employ a city physician and fix his compensation, does employ such physician, but neglects to fix the compensation, he may recover on a quantum meruit.

IMPLIED CONTRACTS OF CORPORATIONS. A corporation, like an individual, may be bound upon an implied contract, provided it be within the scope of its corporate authority; and there is no distinction in this respect between a municipal and a trading corporation.

LIABILITY ON IMPLIED CONTRACTS. A municipal corporation, authorized in general terms "to make all necessary contracts and agreements for the benefit of the city," whilst acting within the scope of its powers is as completely bound by implied as by written contracts.

AMENDMENT OF COMPLAINT. That an amendment of a complaint will deprive the defendant of his right to plead the statute of limitations is no reason why such amendment should be refused.

STATUTE OF LIMITATIONS. Where plaintiff originally sued on a written contract, and afterwards amended his complaint by adding a second count on an implied contract for the same cause of action: Held, that such amendment could not be resisted on the ground that a new suit on such second count would then be barred by the statute of limitations; and that to strike out such second count on that ground was error.

Tucker v. Mayor and Board of Aldermen of the City of Virginia.

APPEAL from the District Court of the First Judicial District, Storey County.

The opinion of the Court sets forth all the allegations of the pleadings, and the proceedings necessary for a full understanding of the points decided.

Hillyer and Whitman, for Appellant.

The contract set forth was clearly within the power of the council to make, and has been executed by the plaintiff. If it be objected that the council was confined in the making of it to providing for the indigent, the contract would only be objectionable in so far as it attempted to provide for those not indigent, not in toto. The demurrer then should not have been sustained, some portion of the complaint showing a cause of action.

The amendment was stricken out principally upon the ground that since the filing of the complaint, the statute of limitations had run in favor of defendants upon a cause of action founded upon a quantum meruit, but such was not the case at the commencement of the original action. The plaintiff, in his amendment, simply put himself and the defendants in statu quo as at that time.

If the statute had pointed out any special or peculiar mode of regulating the duties or compensation of the city physician, he perhaps could have no cause of action against the city, unless this mode had been strictly followed; but the statute ex industria seems to leave the position of physician to be guided by ordinary rules and common usage; so, if he was employed, as averred, by the agents of the city, and rendered his services as requested by them, he was, in the absence of any express ordinance or law to the contrary, entitled to charge what his services were worth.

The growing tendency of Courts has been properly directed to establishing the duties and liabilities of corporations in such manner that they may not be allowed to enjoy the status of a private individual without accepting its appertaining burdens. Unless the action of a corporation is strictly ultra vires, it will be held thereto, and this especially in the case of an executed contract. (Pixley v. W. P. Railroad Co., 33 Cal. 183.)

Tucker v. Mayor and Board of Aldermen of the City of Virginia.

Aldrich and DeLong and Hoover and Cole, for Respondents.

The written contract is void upon its face, it not appearing to have been made by competent authority, or for a purpose within the scope of the authority of the defendant under its charter, as it does not purport to be a contract made to provide for the indigent, or in establishing a city infirmary.

Corporations have no other powers than such as are especially granted, and can only exercise such powers as are granted in the mode pointed out by the act of incorporation. (Whitman G. & S. Co. v. Williams et al., 4 Nev.-; 2 Denio, 112; 3 Comstock, 433; 2 Kent's Com., 298; Douglas v. Mayor and Common Council of Placerville, 18 Cal. 643.)

A municipal corporation in the exercise of its legitimate powers can only act by and through its agents, appointed in the mode prescribed by the law of its creation. (French v. Teschemacher, 24 Cal. 550; People v. Coon, 25 Cal. 649; Zottman v. City and County of San Francisco, 20 Cal. 102; Head v. Providence Ins. Co., 2 Cranch, 156.)

To bind a municipal corporation for services, it must appear that they were originally authorized or subsequently accepted by ordinance. (Argenti v. City and County of San Francisco, 16 Cal. 282; Zottman v. City and County of San Francisco, 20 Cal. 104.)

Under the charter the council could establish an infirmary and provide for the indigent, but it could do neither so as to bind the city by their act, except by an ordinance. As the plaintiff does not charge or anywhere show in his complaint that any ordinance was ever passed authorizing him to make use of his hospital as a city infirmary, or to provide medical attendance or medicines for indigent persons, the city is not bound, because he did it voluntarily without having any authority from any source so to do.

Parties dealing with a municipal corporation are chargeable with a full knowledge of its powers, and act at their peril. (Branham v. Mayor and Common Council of San José, 24 Cal. 585.)

If the express contract is void, plaintiff cannot recover upon an implied contract. (Cowen v. Village of West Troy, 43 Barb. 49; Brady v. Mayor of City of New York, 16 How. 432.)