Edward Creighton v. The City of Toledo.
1. Where there is an express contract between parties, none can he implied. The maxim expression facit cessare taciturn applies in such cases.
2. Under the municipal corporation act of 1852, as amended March 11, 1853, a city by ordinance determined to improve certain streets and to assess the expenses upon the abutting lots. A contractor agreed in writing to do the work, the city binding itself to pay him therefor certain specified prices “ in the following manner.” The contract then recited that when the work was done, the amount should be assessed by the city and the assessment assigned to the contractor. Held, that the city was not liable for any deficiency resulting from the fact that the assessment upon some of the lots .exceeded their value.
*448Error to the district court of Lucas county.
The plaintiff in error, who was the plaintiff below, brought his action to recover of the defendant a balance which he alleged to, be due on a contract -in writing, entered into between the parties on the 7th day of April, 1855, for grading and otherwise improving certain streets, in pursuance of an ordinance of the city, duly passed for that purpose.
♦Prior to the making of the agreement, and as part of the [448 ordinance directing the improvement, the city council determined that the cost and expenses of the improvement should be assessed on the lots abutting on the streets so to be improved, in proportion to the feet front of such lots.
The contract provides that the plaintiff, in consideration of the stipulations and agreements of the defendant therein contained, will furnish certain materials and do the work in accordance with the provisions of the ordinance providing for the improvement, and at certain specified rates and prices.
The defendant, in consideration of the performance of the contract on the part of the plaintiff, agrees to pay him and his assigns “ the above-mentioned rates and prices, in full of all labor and materials and every expenditure in fully completing said work and improvement, in the following manner: Whenever said party of the first part shall have fully completed the above-mentioned work and improvement, in the manner specified in this contract, said .street commissioner shall give said party of the first part a certificate to that effect, on the presentation of which to the city council, said council'shall assess the costs and expenses of completing .said work and improvement on the lots and lands made liable by law to pay said costs and expenses, and shall make out and deliver, or •cause to be made out and delivered, a certified copy of said assessment, unto said party of the first part, and authorize and empower :said party or his assigns to collect the several amounts due and payable for said work and improvement.”
On completion of the improvement, the cost and expenses were duly assessed upon the several lots liable to be assessed, and a certified copy of the assessment was delivered to the plaintiff, as required by the contract, and he was duly authorized and empowered to collect the several amounts from the lots so assessed.
The plaintiff instituted his suit in the United States circuit court for the northern district of this state, to enforce the collection *449, 450of the amount due on the assessment from the property, which was brought to a successful termination ; but resulted, in respect to several of the lots, in their sale, and, after applying the proceeds to 449] the payment of costs and the assessments, *in leaving a considerable remainder of the amount assessed unpaid. This remainder, it is sought in the original petition to recover. No extrinsic facts are set out as affecting the right of the plaintiff to recover. He relies solely upon the contract and the ordinance.
The court of common pleas overruled the demurrer of the defendant to the petition, and, no issue being taken, gave judgment for the amount claimed.
The district court, on error, held the overruling of the demurrer to be erroneous, and reversed the judgment; and to reverse the judgment of the district court is the object of the present petition in error.
Kent & Newton, for plaintiff in error.
J. T. Newton, argued:
The city made an absolute promise to pay the cost price of the work and improvement, and nothing short of full payment will discharge it. The assessment to be made and transferred by the-city to the contractor, was not, by the intention and agreement of the parties, as gathered from the written contract, to be a satisfaction and discharge of the liability.
"We do not find in that, any apt or familiar terms, showing that the liability was to be discharged by giving and receiving some-collateral thing, and the debt paid in something other than money. The most that can be said, is that the parties supposed the assessment would pay and discharge the debt, and following out 'such supposition, the mode and manner of obtaining payment are indicated. And in making such provision the contractor assumed to enforce and exhaust the assessment, and as a consequence, for the time being, to withhold the enforcement of the liability of the city.
In the absence of an express agreement to the contrary, we claim, the parties assumed such and only such relations to each other, and that in taking the assessment under the agreement, the contractor did not take upon himself the risk of collection dependent upon its-validity, and the value of the property upon which the assessment, was made.
459] *If creditor and debtor should agree that an existing debt *451should be paid in the following manner, that is to say in the notes* of a bank supposed to be solvent, but in fact .insolvent, the delivery of such notes is not a payment. 10 Ohio St. 188.
In the absence of an express agreement to that effect, the delivery of the note of a third person, or a check, or order, or bill of exchange, the same being received by the creditor of his debtor' upon a pre-existing debt, or by the vendor of a vendee upon a sale and purchase of property, does not amount to payment. Gardner v. Gorham, 1 Doug. (Mich.) 507; Johnson v. Weed, 9 Johns. 309 ; Porter v. Talcott, 1 Cow. 359 ; Vail v. Foster, 4 Comst. 312; Barnet v. Smith, 10 Foster, 256.
If a creditor receive of his debtor when the debt is contracted, the note of a third person and indorsed by such debtor, it will not be presumed to have been taken in satisfaction. Whitney v. Goin, 20 N. H. 354.
A mortgage by a third person received upon a pre-existing debt, is no extinguishment thereof, unless expressly agreed to be accepted in full discharge and satisfaction. Coonley v. Coonley, Hill & Denio, 312.
The Superior Court of Cincinnati, in a case when payment was-to be made for work by an assessment, held that when the city-council failed to make a valid assessment to pay the costs of the improvement, though such assessment was transferred to the contractor, yet the contractor might recover from the city the value of the work done. Folz v. City of Cincinnati, 2 Handy, 261.
We fail to see any difference in principle between a ease where the city makes an invalid assessment, and a valid assessment which can not be made to yield the debt, and do not see why it should beheld that the city guarantees the quality of the assessment but not. the quantity.
We do not discover anywhere in the contract, any provision-which looks to the substitution of the assessment for the claim-assumed by the city, or which casts upon the contractor the loss-claimed upon the assessment, and in the absence of a clear intention expressed in the contract, the court will not relieve the city from the liability it assumed to pay for *work done, and [451 materials furnished by the contractor upon its credit, and for its-account.
Thomas Dunlap, city solicitor, for defendant in error.
No brief for defendant in error is found with the papers.
*452White, J.
The plaintiff’s right to recover is not founded upon a quantum meruit, but solely upon an express contract, which provides a stipulated mode of payment, and thus excludes the idea of a recovery upon an implied assumpsit. Where there is an express contract between parties, none can be implied ; the maxim expres- sumfacit cessare taciturn applies in such cases. If this were not so, it would be necessary for the parties to every agreement to provide in terms that they are to be understood not to be bound to anything which is not expressly set down, which would bo manifestly inconvenient. Broom’s Maxims (s. p.), 631.
The plaintiff’s right of recovery depends upon whether there was .a breach of the contract on the part of the defendant; and this is to be determined by ascertaining whether, upon its fair construction, the defendant is to be held to have guaranteed the sufficiency of the property assessed to pay the full amount of the assessment.
No question is made against the regularity of the assessment; nor does any question arise with lot-owners as to the assessment being excessive. The petition shows that the lots in respect to which the deficiency occurred were sold, and the proceeds appropriated at the instance of the contractor. It is not claimed that the parties could not agree that the contractor should look exclusively to the assessment for his compensation. The question is whether they did so agree.
The statute which authoinzed the improvement to be made also .authorized the entire expenses to be assessed on the lots abutting on the streets improved, either in proportion to the feet front of the several lots on such streets, or to their several valuations as assessed for taxation, as the council might in each case determine. ’Curwen’s Stat. 2159. At the time and by the same same ordinance 452] by which the imjxrovement was ^ordered, it was determined that the expenses should be raised by assessing the amount thereof on the property abutting on the streets, in proportion to the feet front. This was known to the contractor, and with this view the work was undertaken, and both parties entered into the contract.
The city, on its part, agreed to exercise the power with which it was invested, of assessing the cost of the improvement upon the property liable to be charged, and the contractor agreed to receive a certified copy of the assessment, with authority to collect the same, as payment on his part.
The specification of the rates and prices of the work and mate*453rial in the contract was necessary to ascertain the amount to be assessed. The promise was not to pay at the rates and prices-named at all events, but to pay in the manner specified, and in no other, and the contract declares that the payment was to be “in. full of all labor and materials in completing said work and improvement.”
The clause of the contract which provides that the contractor or • his assigns is to be authorized to collect the several amounts due and payable for the work, has reference to the amounts which may be assessed on the property, and which would thus become due-from the property or from the owners in respect to it, and has no-reference to any amount as due from the city.
Judgment affirmed.
Day, C. J., and Brinkerhoff and Welch, JJ., concurred.
Scott, J., dissented.