Opinion by
The plaintiff by a contract in writing, dated April 24,1897, agreed “ to grade Grant street (cartway) from Academy Road to the New York Division of the Pennsylvania Railroad, the work of grading to include, without additional allowance or compensation, the construction of the necessary sewers and drains and two temporary wooden bridges over a branch of Poquessing creek; also remacadamizing and all other work incident to the grading in strict and exact accordance with the proposal and specifications hereto attached.” It was also stipulated that the contract was entered into under and subject to the provisions of the Act of June 1, 1885, P. L. 37, requiring all city contracts to be in writing, and that the total amount to be expended for the work to be done under the contract “ shall in no event exceed the sum of $21,000.” By a supplemental agreement this amount was increased to $23,400. The plaintiff did the work called for in the agreement, and -was paid by the city the full amount named in the agreement.
This is an action of assumpsit to recover $13,680.50, which the plaintiff alleges is due him for work done in constructing certain sewers and drains and remacadamizing, part of the work agreed to be done by him in his contract with the city to grade Grant street. He alleges that the bureau of highways sent out the specifications for the work to be done on Grant street which he received, but which did not include the work for which compensation is claimed in this suit; that subsequently and prior to letting the contract for the work they recalled these specifications from some of the parties to whom
The facts of the case are not disputed. The plaintiff’s position is thus stated in his printed argument: “ The plaintiff relies upon the contract executed in accordance with the requirements of the act cited (June 1, 1885), and which includes the work performed. But he relies for additional compensation for such work upon the subsequent appropriating ordinance. . . . There is no dispute as to whether the work was done under contract; that is conceded. A contract for the work, therefore, is shown. The question now is whether the municipal legislature may appropriate extra compensation.”
There is but a single question involved in this appeal, and it is whether councils can by the ordinance presented as the basis of this claim bind the city to pay for work done in pursuance of a written contract for which the city has paid the price stipulated in the contract, To state the question would
It is urged, however, on the part of the plaintiff that he was misled by the specifications furnished him by the city officials on which he tendered his bid which was accepted and on which the contract was awarded him. It is also claimed that he signed the contract under protest and agreed to complete the work that he might be eligible as a bidder for future work of the city. He alleges, and it is admitted, that he advised the director of public works of the change in the specifications and that he would claim additional compensation for the construction of the sewers and drains. It is upon these grounds, the plaintiff contends, that the councils were justified in passing the ordinance which he claims as a basis for a recovery in this action. But conceding these allegations to be true, he utterly fails to establish a valid claim against the city, or to show sufficient efficacy in the ordinance to sustain his demand. If the plaintiff was misled in bidding by the specifications furnished him
The ordinance declared upon will not support the action. It appropriates money to the department of public works to pay for the construction of the sewers and drains on Grant street. But before any person can sustain a claim against the city for compensation for the work he must, as we harm seen, show that it is due him by a contract in writing, signed by the proper city officer. Until the plaintiff presents a demand showing a liability on the part of the city imposed by a written contract, he cannot enforce payment of his claim against money appropriated by the ordinance in question to the department of public works. If councils may by an ordinance of this character impose a liability on the city for claims for grading streets and constructing sewers and drains without a contract executed in accordance with the act of 1885, the statute is rendered nugatory and its purpose, the protection of the city, is completely frustrated. It is not pretended that this claim for “ extra compensation ” is for work done in pursuance of a written agreement other than that of 1897, and the plaintiff having received the compensation stipulated in that contract for the performance of this work, his claim in this action is not supported by a contract in writing and, hence, the money appropriated by the ordinance in question cannot be made available in satisfaction of it.
The assignments of error are overruled and the judgment is affirmed.