Brown v. Board of Education of City of Pomona

McFarland, J. The court below sustained a demurrer to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, and [534]plaintiff declining to amend, judgment was rendered for defendant. Plaintiff appeals from the judgment.

It is averred in the complaint that, at defendant’s request, the plaintiff made and delivered to defendant certain plans and specifications for two public school buildings, to be built in the city of Pomona, which were duly approved, accepted, and adopted by defendant; that the services of plaintiff in preparing and furnishing the same to defendant were reasonably worth a certain stated sum of money; that plaintiff has demanded of defendant payment of said sum of money; and that defendant has not, nor has any one, paid the same or any part thereof, and the whole thereof remains due and unpaid. The prayer is for judgment for said sum of money.

It is clear that the question here involved—and the only question upon which we can pass—is a pure question of pleading. The decisions of this court cited by counsel for respondent, declaring the general doctrine that a contract which a municipal corporation attempts to make in violation of or beyond its chartered powers is void, are not in point, for they were made upon facts found on issues joined. No one of them—from Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96, to Barry v. Goad, 89 Cal. 215,—dealt with a question of pleading such as is presented in the case at bar. It is contended by respondent that the defendant had no power to make the contract sued on; but surely when a corporation seeks to avoid its own contract on the ground of its want of power to contract it must make good its defense of ultra vires by plea and proof. “A.contract by a corporation, which is not upon its face necessarily beyond the scope of its authority, will, in the absence of proof, be presumed to be valid.” (Union W. Co. v. Murphy’s Flat Fluming Co., 22 Cal. 621; Shaver v. Bear River etc. Co., 10 Cal. 400; Evans v. Bailey, 66 Cal. 112; Miners’ Ditch Co. v. Zellerbach, 37 Cal. 543; 99 Am. Dec. 300.) And with respect to mere ordinary business contracts a municipal, or quasi municipal, corporation stands on [535]the same footing with other corporations. If a contract for • the drawing of plans and specifications in anticipation of proceedings for the building of a schoolhouse was entirely beyond the scope of the powers of the respondent, and could not be legally "made by it under any conceivable circumstances, then the point sought to be made by respondent might perhaps be raised on demurrer; but the position that respondent could not, under any circumstances, make such a contract is not tenable. We do not understand respondent to insist on that position, his contention being that such a contract can be made only under certain circumstances. As to the form of the complaint, we think it sufficient. “ Corporations may be bound by implied contracts within the scope of their authority”; and “municipal corporations are liable to actions of implied assumpsit.” (Dillon on Municipal Corporations, secs. 459,938.) And in Hunt v. San Francisco, 11 Cal. 258, the court said: “We have held that the common counts, in the usual form adopted under the old system of pleading, are good in actions against private persons. And we cannot see either the necessity or propriety of holding a different rule in respect to corporations of whatever kind. The rules of pleading are general. They are designed to embrace all persons, natural or artificial, capable of suing or being sued.”