Vetter v. Meadville , 236 Pa. 563 ( 1912 )

Opinion by

Mr. Justice Stewart,

The plaintiff’s statement of claim discloses no cause of action; it is lacking in an essential feature. The suit was brought for and on behalf of the use plaintiff to recover from the city of Meadville a portion of the contract price for which the legal plaintiff, Vetter, had undertaken to grade, curb and pave a portion of a certain street in the city, and which amount it was averred Vetter had assigned to the use plaintiff. The assignment declared on, it will be observed, was but a partial one. The right of recovery therefore, other things being sufficient, depended on whether the city of Meadville had assented to it. Jermyn v. Moffitt, 75 Pa. 399; Philadelphia’s Appeals, 86 Pa. 179; Geist’s App., 104 Pa. 351. The averment is that “on or about May 2,1907, George J. Vetter made and signed an order upon the city of Meadville, or its city treasurer, Charles H. Schmidt, authorizing and directing him to retain money due said contractor, and pay the same to the Pittsburgh-Buffalo Company 85 per cent. as shown by its statement of account rendered;...... that the said city treasurer accepted said order and agreed to retain the said money and pay the same to the said use plaintiff, the Pittsburgh-Buffalo Company, as shown by the assignment, order or acceptance, copy of which assignment, order and acceptance is hereto attached.” The assignment, more properly speaking, the order, signed by Vetter, was directed to the city treasurer, and it simply authorized and directed him to retain from money due or to become due under his contract, and pay same to the order of the Pittsburgh-Buffalo. Company as set out in the averment for repressed block furnished on Vetter’s order. The entry on the order by the city treasurer was as follows: “I hereby accept the above as authority for retaining sufficient funds and paying the same to Pittsburgh and Buffalo Coal Company,” signed “Charles H. Schmidt, City Treasurer.” Whether this acceptance constituted a contract giving rise to duties and obligations we shall not discuss; for assuming that it was such contract, it certainly could give rise to no duty or obligation upon the defendant municipality, except as it was shown that the city treasurer had authority to act for the municipality in making the contract. There was no averment that he had other authority than that implied from his office. Certainly something more was required, for the powers and functions of that official, defined by act of assembly, are limited to the receiving moneys payable to the city and paying all warrants duly countersigned by the controller. The exercise of any authority other than this, except as specially authorized would be pure assumption on his part from which could arise no liability on the part of the city. In the case of First National Bank v. Newcastle, 224 Pa. 285, where the act of a city treasurer was the basis of a suit, Ave said, “The duties of B, as city treasurer, were limited to receiving the moneys of the city and paying them out on warrant. He had no authority by virtue of his office to do anything else for it or in its name, and was powerless to make any promise on its behalf. An obligation signed by him as city treasurer could no more commit the city to its discharge than if signed by himself as an individual.” The statement here avers that the use plantiff notified the city council of Meadville and the mayor of “this order and assignment and its acceptance by the city treasurer and his agreement to retain the money mentioned and pay it over to the Pittsburgh-Buffalo Company.” But this of itself would not fasten liability on the city. Had it been an assignment of the entire sum due in the contract, notice to the city under the authority of Philadelphia v. Lockhardt, 73 Pa. 211, would have been sufficient to charge the city therewith; but where the assignment is only of a part of the fund more than notice is required, the assent of the city must be averred and shown. The statement of claim lacking any averment of assent, and the acceptance by the treasurer being insufficient to impose liability on the city the demurrer was properly sustained. The assignments of error are overruled and the judgment affirmed