with the defendant at or about the times of the transactions involved herein there was the sum of $590.05, the amount of a draft received from the bank at Courtland, and with which it was credited, and of which payment was refused on presentation to the bank in Chicago on which it was drawn. It was subsequently paid, but this fact cuts no figure in the present controversy. It is now urged for defendant that it had the right, when the payment of this draft was refused, to charge its amount back against the account of the Courtland Bank, and, this being true, there was not money to pay the checks of plaintiff in the hands of defendant, and its refusal of payment was warranted, and must be upheld. As we view this matter as developed in the evidence, the defendant has furnished by its action a solution of this question. On the morning of the 7th of June it had no hesitancy, when it desired to apply the amount of the balance of the account of the Bank of Courtland to the payment of its debt to the defendant, in considering the whole of such amount as belonging unqualifiedly to the Bank of Courtland, and will not be heard to assert now, if such money cannot be applied as it was then placed, it was but conditionally the property of the Bank of Courtland, and we will now take another and different position in regard to it. It follows from what has been said that the judgment of the trial court was wrong, and it must be reversed. Reversed and remanded.

McCONNIFF v. VAN DUSEN et al. (Supreme Court of Nebraska. Dec. 8, 1898.) PARTIES INTERVENTION-APPEAL.

1. A person claiming ownership of property in litigation may, at any time before trial, become a party to the action by intervention, and have his claim adjudicated.

2. A judgment based on an immaterial fact or an erroneous construction of a pleading will be reversed, unless the correctness of such judgment is otherwise affirmatively shown.

(Syllabus by the Court.)

Appeal from district court, Lancaster county; Holmes, Judge.

Action by Elizabeth J. McConniff against Alice E. Van Dusen and another. Pratt, Simmons & Krausnick intervened, and from a judgment dismissing their petition they appeal. Reversed.

Harwood, Ames & Pettis, for appellants. A. G. Greenlee, for appellee.

SULLIVAN, J. Elizabeth J. McConniff brought this action in the district court of Lancaster county to foreclose a chattel mortgage made and delivered to her by Alice E. Van Dusen and R. J. Brydon. At the instance of the plaintiff, a receiver was appointed, and the mortgaged property, which consisted of a stock of millinery goods, was taken from the possession of the mortgagors, and sold at public auction, under the direc

tion of the court. Mrs. McConniff became the purchaser. Before the commencement of the trial the appellants, Pratt, Simmons & Krausnick, became parties to the action by intervention. They allege in their petition, with much elaboration, that they are the owners of a portion of the property in controversy; that the mortgagors purchased and obtained possession of the same by false representations touching their financial responsibility; that the sale was seasonably rescinded; that the plaintiff is not a bona fide purchaser, nor possessed, by virtue of her mortgage or otherwise, of any valid or enforceable claim, lien, right, or title. In due time issues were joined and a trial had, which resulted in a decree dismissing the interveners' petition. They appeal, and bring before us for review the pleadings, motions, interlocutory orders, and final judgment. A bill of exceptions attached to the record was, for sufficient reason, quashed at a former term. The portion of the decree disposing of the claim of Pratt, Simmons & Krausnick is as follows: "This cause, having been heretofore submitted to the court upon the evidence adduced, now comes on for final determination; and after due consideration, and the court being fully advised in the premises, finds that the claim of the interveners, Pratt, Simmons & Krausnick, set forth in their answer and cross petition herein, has not been reduced to judgment, and that there is no equity in said interveners' answer and cross petition. The court, therefore, finds the issues joined in favor of the plaintiff, and that the action of the said defendants Pratt, Simmons & Krausnick herein shall be, and the same hereby is, dismissed at their costs, taxed at $31.68, and for which execution is hereby awarded; to which the said defendants Pratt, Simmons & Krausnick duly excepted."

The writer was at first inclined to think that the court intended to base its finding of the issues on the evidence adduced at the trial; but, as the result of a closer examination and more careful analysis of the language contained in the journal entry, we are all agreed that the interveners were cast in their action because the trial court found their claim had not been reduced to judgment, and that their petition was deficient in equity. These reasons are insufficient. They do not justify the conclusion or judgment. The property in question, or its proceeds, was in the custody of the court. interveners claimed a portion of it adversely to the original parties to the action. They averred facts in their petition showing the superiority of their title over the claims of other litigants. They were entitled to intervene, and to a judgment in their favor, if they succeeded in establishing the material allegations of their pleading. Code Civ. Proc. § 50a; Holland v. Bank, 22 Neb. 585, 36 N. W. 112; Welborn v. Eskey, 25 Neb. 195, 40 N. W. 960. We know of no reason why it

The

was necessary that their claim should be in judgment in order to give them a standing in court. They were asserting title to the property, not prosecuting a creditors' bill. The judgment of the district court is reversed, and the cause remanded for further proceedings. Reversed and remanded.

LINCOLN LAND CO. v. VILLAGE OF GRANT.

(Supreme Court of Nebraska.

Dec. 8, 1898.) VILLAGES ORDINANCES - SUBJECT AND TITLECONTRACTS-RATIFICATION-QUANTUM MERUIT.

1. An ordinance adopted by a board of village trustees is valid only as to subjects clearly expressed in the title.

2. A contract providing for the rental of five hydrants is not a subject of legislation expressed in the following title: "An ordinance authorizing the Lincoln Land Company to construct and maintain a system of water works, and use the streets, alleys, avenues, and public grounds for laying their mains and pipes in the town of Grant, in Perkins county, Nebraska."

3. A contract for the rental of five hydrants, contained in an ordinance entitled as aforesaid, is void.

4. Where a municipal corporation receives and retains substantial benefits under a contract which it was authorized to make, but which was void because irregularly executed, it is liable in an action brought to recover the reasonable value of the benefits received.

5. In such an action it is unnecessary to establish a ratification of the contract. GuttaPercha & Rubber Mfg. Co. v. Village of Ogalalla. 59 N. W. 513, 40 Neb. 775, and Tullock v. Webster Co., 64 N. W. 705, 46 Neb. 211, distinguished.

(Syllabus by the Court.)

Error to district court, Perkins county; Grimes, Judge.

W. S. Morlan and J. W. Deweese, for plaintiff in error. C. C. Flansburg and C. P. Logan, for defendant in error.

SULLIVAN, J. The Lincoln Land Company sued the village of Grant in the district court of Perkins county to recover the sum of $900, alleged to be due as rental for 15 hydrants. On demurrer to the petition, judgment was rendered in favor of the defendant, and the plaintiff prosecutes error to this court.

From the averments of the petition it appears that on April 13, 1889, the board of trustees of the defendant village adopted an ordinance authorizing the plaintiff to construct and maintain a system of waterworks in said village, and to use the streets and alleys thereof for the term of 25 years for the purpose of laying down the necessary mains and pipes. The ordinance further provided that the company should furnish the village the use of 15 hydrants free of cost for a period of 41⁄2 years immediately following the completion of the system, and that for the 201⁄2 years next ensuing the village should pay to the company an annual rental

of $60 each for not less than 15 hydrants. The plant was constructed, and the period during which water was to be furnished free expired April 1, 1894. During the following year the village used the 15 hydrants, but has refused to pay therefor the rental fixed by the ordinance. On behalf of the defendant it is insisted that the provision of the ordinance in relation to the rental of hydrants is void, for the reason that there was no antecedent appropriation to cover the expenditure, as required by section 86, art. 1, c. 14, Comp. St. Our attention is especially directed to section 89 of the village charter, which is as follows: "No contract shall be hereafter made by the city council or board of trustees, or any committee or member thereof; and no expense shall be incurred by any of the officers or departments of the corporation, whether the object of the expenditure shall have been ordered by the city council or board of trustees or not, unless an appropriation shall have been previously made concerning such expense, except as herein otherwise expressly provided." The section quoted, in connection with other kindred provisions of the act, evinces a clear legislative purpose to confine the current expenditures of municipalities of the class here in question to their current revenues, and to prevent the creation of long-time obligations, which may prove burdensome in the future, although prudent and provident enough when viewed in the light of the present conditions. It would be difficult indeed to choose more explicit and imperative language to express the idea that municipal authorities have no power, unless expressly granted, to create liabilities extending beyond the current year. The legislative policy to leave future municipal revenues unincumbered being frequently declared and strongly accentuated, as will appear from an examination of sections 8689 of the charter (Comp. St. c. 14, art. 1), the power to make a valid contract imposing on the village a serious financial burden during a quarter of a century ought not to be derived as a mere probable inference from an ambiguous statute. But in the case of City of North Platte v. North Platte Waterworks Co. (Neb.) 76 N. W. 906, the existence of such power was assumed without discussion. What was said on the subject is here subjoined: "By subdivision 15 of section 69 of the chapter just referred to [Comp. St. art. 1, c. 14], it is provided that cities of the class in which North Platte is embraced may enact ordinances, among other things, 'to make contracts with and authorize any person, company, or corporation to erect and maintain a system of waterworks and water supply, and to give such contractors the exclusive privilege for a term not exceeding twenty-five years, to lay down in the streets and alleys of said city, water mains and supply pipes, and to furnish water to such city or village and the residents thereof, and under such regulations as to price, supply,

rent of water-meters, as the council or board of trustees may from time to time prescribe by ordinance for the protection of the city.' The power to contract with individuals or corporations for a supply of water to be furnished for the use of the city for a term not exceeding 25 years implies the power to provide that payments shall be made as the right to receive them accrues, without an appropriation having been previously made with reference to the several payments as they shall mature." The writer concurred in the opinion from which the foregoing extract was taken, but is now convinced, as the result of a more critical examination of the statute in question, that the conclusion reached was incorrect, and that a city or village is only authorized to give an individual, company, or corporation an exclusive privilege for 25 years to lay down water mains and supply pipes in the public streets and alleys, and also the exclusive right for the same period to furnish water to the municipality and its inhabitants on such terms as may be fixed by ordinance from time to time. That the terms should be reasonable is, of course, implied. Immediately following the provision of the statute contained in the foregoing excerpt, it is declared that "the right to supervise and control such corporation as above shall not be waived or set aside." Considering subdivision 15 of section 69 in connection with sections 86-89, it seems to be entirely clear that municipal authorities are without power to make contracts, concerning either the quantity of water to be furnished or the price to be paid, which shall extend beyond the year in which such contracts are made. If a city or village may by ordinance determine from year to year the quantity of water it will take, and the price it will pay, then the owner of the water plant has at best but a barren and anomalous contract,-one that may be eviscerated, but not annulled. It is needless, however, to pursue this subject further. My associates are satisfied with the decision in City of North Platte v. North Platte Waterworks Co., supra, and it must therefore be accepted as a precedent for this case.

It being settled that the village was authorized to make the contract in question, we proceed now to inquire whether the power was exercised in a lawful manner. The ordinance on which the plaintiff relies was entitled "An ordinance authorizing the Lincoln Land Company to construct and maintain a system of water works and use the streets, alleys, avenues and public grounds for laying their mains and pipes, in the town of Grant, in Perkins county, Nebraska." Section 79 of the chapter declares that "ordinances shall contain no subject which shall not be clearly expressed in its title." Was the contract for 15 hydrants at an annual rental of $900 clearly expressed in the title above quoted? We think it was neither clearly nor obscurely expressed. The title neither specifically nor by

general terms gave notice that the ordinance contained a contract binding the city to any thing in the future. The title declared that the purpose of the ordinance was to grant a franchise. It suggested nothing more. A contract for a supply of water was not a necessary incident or condition of the grant. State v. City of Crete, 32 Neb. 568-587, 49 N. W. 272. The title was sharply restrictive, and not at all calculated to arouse aldermanic suspicion that there might be a contract concealed in the folds of the measure. The title was not an index to the contract, and the contract was void. White v. City of Lincoln, 5 Neb. 505; Ives v. Norris, 13 Neb. 252, 13 N. W. 276; Messenger v. State, 25 Neb. 674, 41 N. W. 638. Still, it does not follow that the demurrer to the petition was rightfully sustained. While the action was primarily one to recover upon an express agreement, the petition, after stating that the plaintiff furnished the defendant 15 hydrants free of cost for 4 years, and that it continued to furnish a like quantity of water after the expiration of said term, and until this action was commenced, proceeds as follows: "The service of each fire hydrant as hereinbefore set forth was and is reasonably worth and of the value of the sum of sixty dollars per year, and the service of the said fifteen fire hydrants was at all the time aforesaid, and is, of the reasonable value of nine hundred dollars per annum. This plaintiff has complied with all the terms and conditions of said ordinance on its part to be performed, and, in pursuance of the terms and conditions of said ordinance, has furnished to the said defendant water to the amount and value of nine hundred dollars, which amount defendant agreed to pay the plaintiff." It thus appears from the averments of the petition, admitted by the demurrer, that the plaintiff has furnished to the defendant water of the value of $900, which the defendant has received and appropriated to its own use. This fact may not constitute a ratification of the contract contained in the ordinance. It may be that a ratification, except by ordinance, is not permissible. Such would be the rule, if the case falls within the principle laid down in Gutta-Percha & Rubber Mfg. Co. v. Village of Ogalalla, 40 Neb. 775, 59 N. W. 513, and approved in Tullock v. Webster Co., 46 Neb. 211, 64 N. W. 705. But the question now before us for decision is not whether the petition states a cause of action on contract, but whether the facts pleaded entitle the plaintiff to any relief whatever. The case of Clark v. Saline Co., 9 Neb. 516, 4 N. W. 246, was an action to recover from the county the value of certain land conveyed by it to Clark in part payment for services and materials furnished by him in the construction of a public bridge. The title to the land had failed, and a recovery was permitted on the ground that the county should pay the fair value of what it had received. The following extract from

Pimental v. City of San Francisco, 21 Cal. 362, was quoted with approval: "The city is not exempted from the common obligation to do justice which binds individuals. Such obligation rests upon all persons, whether natural or artificial. If the city obtain the money of another by mistake, or without authority of law, it is her duty to refund it, from this general obligation. If she obtain other property, which does not belong to her, it is her duty to restore it, or, if used, to render an equivalent therefor, from the like obligation. The legal liability springs from the moral duty to make restitution, and we do not appreciate the morality which denies in such cases any rights to the individual whose money or other property has been thus appropriated. The law countenances no such wretched ethics. Its command always is to do justice." Ward v. Town of Forest Grove, 20 Or. 355, 25 Pac. 1020, was an action by a physician to recover for services rendered in caring for persons afflicted with smallpox. The services were rendered under the authority of a resolution. The power to employ at physician in such cases could be lawfully exercised only by ordinance, but a recovery was permitted, the court saying: "The corporation had the power to make the contract with plaintiff upon which this suit is brought, and attempted to exercise such power by a formal resolution of its board of trustees. The resolution was perhaps an irregular exercise of the power, but it accomplished the purpose intended; and, having received the benefit of the plaintiff's services, the defendant should be compelled to pay him the reasonable value thereof." In Pittsburgh, C. & St. L. Ry. Co. v. Keokuk & H. Bridge Co., 131 U. S. 371-389, 9 Sup. Ct. 776, Mr. Justice Gray, delivering judgment, uses the following pertinent language: “A contract made by a corporation, which is unlawful and void because beyond the scope of its corporate powers, does not by being carried into execution become lawful and valid; but the proper remedy of the party aggrieved is by disaffirming the contract, and suing to recover, as on a quantum meruit, the value of what the defendant has actually received the benefit of." In the case of Paul v. City of Kenosha, 22 Wis. 256, where the plaintiff had purchased certain bonds of the city, which were void for want of power to issue them, it was held that he was entitled to recover the amount paid. The court said: "The city has had that amount of money and legal scrip for its city bonds, which turn out to be of no value whatever. It seems to fall under the general rule of law that where a party sells an obligation which turns out to be valueless, and not of such a character as he represents it to be, he is liable to the vendee as upon a failure of consideration. The city bonds, it appears, were void when the agents of the city sold them to the plaintiff. Is it just and equitable that the city retain the money which it has received for its worth

less bonds?" The foregoing authorities sufficiently establish the right of the plaintiff to recover in this case the value of the use of the 15 fire hydrants. Other decisions to the same effect are Chapman v. Douglass Co., 107 U. S. 348, 2 Sup. Ct. 62; Marsh v. Fulton Co., 10 Wall. 676; Brown v. City of Atchison, 39 Kan. 37, 17 Pac. 465; Livingston v. School Dist. (S. D.) 76 N. W. 301; City of Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442; Argenti v. City of San Francisco, 16 Cal. 256. It is contended that the conclusion at which we have arrived is contrary to the decision in Tullock v. Webster Co., supra. The question there considered was whether ratification of a void contract resulted from an acceptance and retention of benefits by the county. It was held that, as there was no power to make the contract, there could be no authority to ratify it. That is certainly sound doctrine. In this case the power to contract existed, but was not exercised in the manner prescribed by the statute. But we do not in this case decide that there was a ratification. The writer thinks there was not, but the question is left open, because counsel have not discussed it. The principle upon which this decision rests was not at all considered in the Webster County Case. The judgment is reversed, and the cause remanded for further proceedings. Reversed and remanded.

DREXEL et al. v. PUSEY et al. (Supreme Court of Nebraska. Dec. 8, 1898.) EXECUTION OF NOTE-JOINT MAKER-ACCOMMODATION INDORSER-PRINCIPAL AND SURETY. 1. When one not a payee signs his name in blank upon the back of a promissory note before the delivery thereof, the law presumes he signs as maker; but as between the original parties and those not innocent purchasers of the paper for value, and without notice, the true character of the obligation assumed, as that he signed as accommodation indorser or guarantor, may be shown aliunde and by parol.

2. Where, at the inception of a note, a person other than the payee writes his name on the back of the instrument, preceded by the words, "Notice and protest waived," such indorsement is notice to the original payee and subsequent owners of the paper that the liability assumed is not that of a joint maker.

3. The release of property of the principal debtor from the lien of a judgment rendered on a note, without the consent or knowledge of an accommodation indorser, discharges the latter pro tanto.

4. The rendition of a judgment against principal and surety on a note, without having judicially determined on the record which defendant was the principal debtor and which the surety, in accordance with section 511 of the Code of Civil Procedure, does not extinguish the relation of suretyship between the parties, and the duties of the creditor with reference thereto.

5. Potvin v. Meyers, 44 N. W. 25, 27 Neb. 749, distinguished.

(Syllabus by the Court.)

Error to district court, Douglas county; Ambrose, Judge.