
    City of Cincinnati v. Cameron.
    1. The character of a pleading is determined by the averments it contains and not by the name given to it, and if a paper styled “ supplemental petition” contains facts such as would be proper in an amended petition, it may be so treated, and it is within the discretion of the court to allow such a pleading to be filed during the progress of a cause.
    2. It is within the discretion of the court to order a referee to file a supplemental or further report, but a refusal by the court to order the filing of such a report is not a ground of error.
    3. In a trial before a referee, the referee acts as a court, and exceptions to his action should be taken in the same manner as if the trial were proceeding in court. If it is desired that evidence already given should be ruled out, the party should point out what that evidence is, not referring to it in general terms, but stating the matter to which objection is taken, so that it can be ascertained with reasonable certainty. Otherwise no foundation is laid for the action of a court of error.
    4. A contractor does work for a municipal corporation, which refuses payment on the ground that the fund provided by legislative authority has been ali’eady expended. If this be the only defense, the corporation must clearly show that at the time of making the contract and entering upon its execution, it, with others, exceeded in amount the fund provided; otherwise this defense can not prevail. If, at the time of making the contract and entering upon its execution, it, with others, did not exceed in amount the fund provided; but the municipal authorities subsequently made other contracts, the aggregate of which, together with that of those already existing, was in excess of the fund, the contracts first made, and which were within the limit, are not invalidated, and that the fund is exhausted is not a ground of defense.
    6. There is a distinction between those powers of a municipal corporation which are governmental or political in their nature and those which are to be exercised for the management and improvement of property. As to the first, the municipality represents the state, and its responsibility is governed by the same rules which apply to like delegation of power. As to the second, the municipality represents the pecuniary and proprietary interests of individuals, and within the limits of corporate power, the rules which govern the responsibility of individuals are properly applicable.
    
      6. The statute relating to the erection of hospitals (S. & S. 884) provides, section 5: “That all contracts shall be made in the name of the city, and it shall be stipulated therein that the contractors will not execute any extra work, or make any modifications or alterations of the work mentioned in the specifications and plans, unless ordered in writing by the board, and that they will not claim any pay for the same unless such written order is given.” The contract between the city of Cincinnati and Cameron, made by its board of hospital commissioners, contained this stipulation, the board having reserved to itself in said contract full power to make modifications and alterations and to order extras. Modifications and alterations were made and extra work was-duly ordered by the board, but no written order was issued to the contractor. In pursuance thereof, work was done by Cameron outside of the contract. Before doing it he demanded written orders, but was informed by the proper authority that they were unnecessary. There-is no dispute but that the work was satisfactory, and the city is receiving and enjoying the benefit .thereof. Held, the same rule will be applied as would be applied to a private corporation. The action of the board amounted to a waiver of written orders; and the fact that they were not given, under all the circumstances of the case, is not sufficient ground of defense against the contractor’s claim of payment for work done.
    7. A rehearing will not be allowed merely for the purpose of assigning errors not assigned upon the original hearing.
    The petition was filed November 6, 1869, and is simply on an account for labor, materials, etc., in building the Cincinnati Hospital, and is as follows:
    “ The above-named plaintiffs, Wesley M. Cameron, Dell Cameron, and Joseph O. Sawyer, partners as W. M. Cameron & Co., say that the above-named defendant is justly indebted to them in the sum of sixty-four thousand five hundred and fourteen ninety-two one-hundredths ($64,-514.92) dollars on an account, a copy of which is hereunto annexed, marked ‘Exhibit A.’
    “Wherefore these plaintiffs demand judgment against the said defendant for the said sum of sixty-four thousand five hundred and fourteen ninety-two one-hundredths ($64,514.92) dollars, with interest from the 1st day of January, a. d. 1869, and their costs.
    “ S. & S. R. Matthews,
    “ Attorneys for plaintiffs.”
    
      The account, “A,” is attached, but is too long for insertion here. It comprises one hundred and ninety-four items of debit against the city, running from forty cents up to $51,557.80, and aggregating $230,349.32. These charges relate to all manner of items, such as would constitute a builder’s bill for the construction of a large and costly edifice. Upon the other side, there are thirty-four items of credit, running.from $400 to $15,000, and aggregating $155,834.40, leaving a balance due of $64,514.92, the .amount claimed in the petition.
    The answer was filed May 11, 1870, and is as follows:
    “Defendant, for answer to the allegations of plaintiff’s petition, admits that plaintiff' did certain work for the defendant, as claimed in the petition, but avers that the said work was done under a contract for the performance of the same, at certain specified rates therein set forth; that defendant is ready and willing to pay the said plaintiff, in ae■cordancewith said contract, for all work done thereunder; but defendant denies that said plaintiff’s account, annexed to his petition, is true or correct, either in items or amount, ■or that it is indebted to him in the sum alleged.
    “Defendant says that the account for work done is of an intricate nature, such that it can not properly be taken ex■cept in a court of equity; that said account, as set forth in the account annexed to plaintiff’s petition, contains more than two hundred (200) items, many of which are complex items in themselves, as is shown by the account itself; that various payments have been made thereon, on various •dates, which are not set forth in the account as made, but simply as a lump credit.
    “ Defendant says that there is more or less controversy as to most of the items charged in this account.
    “Defendant therefore prays that an account of the work ■done under the said contract may be taken by and under the direction of the court, and that the balance that shall be found due upon taking such account maybe paid by the plaintiff to the defendant, if anything be so due, the defendant being ready and hereby submitting to pay to plaintiff any balance which shall be found due from it to the said plaintiff on the aforesaid account.
    “ Walker & Conner, its Solicitors.”
    On motion of defendant, the cause was sent to a referee, November term, 1870. The referee, Jacob H. G-etzendanner, having died, the cause was referred to Ozro J. Dodds. This order of reference was made December 4, 1871, and was as follows : “ It is hereby ordered that Ozro J. Dodds, Esq., be and he is hereby appointed referee in this cause, vested with the power and charged with the duty of hearing the testimony and finding upon the issues between the parties to this cause, with power to employ the process of the court in procuring the attendance of witnesses and the^ production of books and papers.”
    After the cause had been in progress before the referee, and upon April 9, 1872, the plaintiff filed, against the objection of the city, a supplemental petition, as follows:
    “Now come the plaintiffs, and say that said defendant is 'indebted to them in the sum of $2,979.23, upon an account stated for work and labor done, and materials furnished in and about the building of the Cincinnati Hospital, at the request of said defendant. A copy of which account is hereto attached and marked Exhibit ‘A/
    Wherefore plaintiffs ask judgment against defendant for said sum of $2,979.23, with interest from the 1st day of January, 1869, and costs.
    “ Matthews, Ramsey & Matthews,
    
      “Attorneys for plaintiffs ” exhibit “a.”
    ■“The Oityoe Cincinnati in account withW. M. Cameron & Co.
    ■“ To 16,889 feet of furring wall in dumb-waiters,
    and lifts at 7 cts..................................... $1,182 23
    
      “ To 112 altering 'molding on window frames,
    at $2.00................................................ 224 00
    “ To framing round 288 window frames, at $4.00. 1,152 00
    ■“ To 17 sinks for urinals, at $3.00.................... 51 00 •
    ■*• To 74 ends and scrolls for seats in operating
    theater, at $5.00......................■............... 370 00
    $2,979 23
    
      “Objection to this supplemental petition, so far as relates to its being filed before the referee is waived.
    “John S. Conner, lsf Ass’i City Solicitor.
    
    “ Filed April 9,1872. “ Ozro J. Dodds, Referee.”
    
    Plaintiff also filed an amendment of their petition, as follows:
    “ Now come plaintiffs and file the following amendment of their petition—
    
      u First. To the first item of the account, instead of reading, 1,031,156 ft. at $50.00 per thou-
    sand,.................................................. $51,557 80'
    read, 1,031,156 ft. at $50.00 per thousand... 51,557 80
    “ Or, in the alternative, 905,408 ft. at $50.00 per
    thousand............................................. 45,270 00
    “ Extra work, loss of profits and lumber thrown on the plaintiff’s hand by reason of change in roof............................................... 7,500 00
    $52,770 40
    
      “Second. To the fourth item, rough bracketing,
    read, 17,652 ft. at 60 cents...................... $10,591 20
    Instead of lump item................................ 4,757 00
    “ Third. Read, 6 ornamental scrolls to dormers,
    at $16.00............................................. 96 00
    Instead of 4 ornamental scrolls to dormers,
    at $16.00 ............................................ 64 00
    
      “Fourth. Insert at end of account, 2 benches, at
    $8.00.................................................... 16 00
    “ Defendant’s counsel objects to the filing of this amended petition, waiving, however, the objection so far as the item of rough bracketing is concerned, the amendment as to that item having been previously filed in the case, and incorporated herein for convenience; waiving also objections to its being filed, so far as relates to its being filed before the referee.”
    At the opening of the trial, it was agreed, by counsel for both parties, that, in the hearing of the case before the referee, all testimony should be received which was offered. ■subject to exceptions by either of the counsel when all the the testimony was in.
    The statute authorizing the erection of the hospital building is the act “ to provide for the erection of a hospital in cities of the first class, having a population of over one hundred thousand inhabitants,” passed April 6, 1866. 63 Ohio L. 152 ; S. & S. 884.
    The second section creates a board of “ hospital commissioners,” consisting of a committee of three, appointed by the city council, and the trustees of the hospital, “who are hereby authorized to erect a suitable building for a hospital, ■on the site dedicated for that purpose. They shall have power to adopt a plan, to appoint and fix the compensation of a clerk, an architect, and a superintendent of the work, ■or either of them, and to make all contracts for the execution of the same.”
    By the third section, it is provided that “ the said commissioners shall keep a record of their proceedings, and it is essential to the validity of every contract entered into or made by them that the same shall have been assented to at .a regular meeting of the board, and concurred in by a majority of all the members, and entered on the minutes of their proceedings.”
    The fourth section makes it “ the duty of the commis■sioners to cause plans, specifications, and full-sized detail ■drawings, and forms of bids to be prepared, and, when ■adopted by them, they shall have the said plans and drawings lithographed, and, together with the specifications and forms of bids, piinted for distribution to bidders. They ■shall also cause a form of contract and bond to be prepared by the city solicitor and have the same printed.”
    Section fifth is as follows: “All contracts shall be made in the name of the city, and it shall be stipulated therein that the contractors will not execute any extra work or .make any modifications or alterations of the work mentioned in the specifications and plans, unless ordered in writing by the board, and that they will not claim any pay ¡for the same unless such written order is given. Copies of the said plans and drawings, attested by the contractor, and': the original bids, specifications, and contracts, shall be deposited in the city auditor’s office immediately on the contract being entered into.”
    The sixth section prohibits the making of any contract’ for work or materials, except as relates to procuring plans,, drawings, specifications, and forms of bids, without thirty days’ notice in one or more newspapers of general circulation for proposals, the contract to be entered-into with the lowest responsible bidder, etc.
    Section seven enacts as follows: “ That for the purpose-of raising money to defray the expenses accruing from the-enlargement of the site and erection of a new hospital, the-city council is hereby authorized to issue the bonds of the city in sums not less than one thousand dollars each, bearing any rate of interest not exceeding the legal rate per centum per annum at the time of the issue of said bonds, payable semi-annually, the said bonds to be redeemable within thirty years from the date thereof, and shall not be disposed of at less than their par value. The aggregate amount of said bonds shall not exceed five hundred thousand dollars, and no portion thereof shall be dated prior to March 1, 1867; provided always, that said city council shall take no action to condemn property as is provided in section one hereof, or to issue bonds, as is provided in the section of which this is a part, until said city council shall have first submitted, in manner and form as is hereinafter provided, to a vote of the qualified electors of said city, at an especial election to be held for that purpose, the question whether they shall build a hospital.”
    The remaining sections refer mainly to the mode of conducting such election, and are not material to this case.
    Subsequently was passed an act supplementary to the foregoing, which took effect May 5, 1868 (65 Ohio L. 148; S. & S. 886), which enacted “ that any city, etc., which shall have commenced to erect a hospital under the terms of the act to which this i§ supplementary, is hereby empowered to issue bonds to an amount not to exceed $250,000, for the: purpose of completing and finishing the said hospital; such-bonds shall bear such date as may be thought best by the’ city council of said city, not, however, previous to the-actual date of their issue, and shall otherwise be issued in the same manner and on the same terms and conditions as-are prescribed for the bonds authorized in the act to which this is supplementary and the amendments thereto.”
    The contract between the parties is as follows:
    “ This agreement, made this 5th day of July, 1867, between the city of Cincinnati, by Charles F„ Wilstach, president, and-J. J. Quinn, secretary, of the board of hospital’ commissioners of the Commercial Hospital of Cincinnati, of the first part, and W. M. Cameron & Co., of the second’ part.
    “Witnesseth, that the said party of the second part agrees to and will, in a good, skillful, substantial, and workmanlike manner, and with materials sufficient and proper of their several kinds, perform such portions of the carpenter work required by the plans and specifications for the entire completion of the administration block, the-three pavilions on Central avenue, the kitchen building, the connecting corridors, and the coal depot, and boiler rooms, and for inclosing and finishing on the outside the three pavilions on Plum street, and the connecting corridors, for the Commercial Hospital, in the city of Cincinnati (said plans being on file in the auditor’s office of said city, and a copy of said specifications annexed hereto, and both made part of this contract)^ which are specified in the bid hereto annexed and made part hereof; and also all the carpenter work by said plans, specifications, and bid, implied or reasonably to be inferred in and about the said-hospital for the above portion of the work. The said materials to be furnished and said work to be done to the satisfaction of the architect and superintendent, of the erection of the said building for the time being, according to such working plans and explanatory drawings and instructions as may from time to time be furnished by the said architect and superintendent, said work all to be completed without any charge for any extras whatsoever.
    “ The said party of the second part further agrees to commence the said work forthwith, and. to proceed with and complete the same, to the satisfaction of the said board of hospital commissioners, as rapidly as may be required by the architect and superintendent.
    “ The said party of the second part further agrees not to execute any other than the above portions of work, or make auy alterations or modifications in the work mentioned in the specifications and plans, unless ordered, in writing, by the said architect and superintendent, and countersigned by the said board, nor to claim payment for the same, unless such .written order be produced.
    “ The said board shall be at liberty, from time to time, to direct or order any modifications or alterations to be made in said specifications, plans, or drawings, or in any portion or portions of the materials or work in the said plans and specifications mentioned, and in like manner to direct and order the omission altogether of any portion or portions of the work in said plans, specifications, and bid mentioned, or to substitute any other work or works in the place of such portion or portions, and such modifications, alterations omissions, and substitutions may be so directed and ordered to be carried out by the said board in respect to any portion of the work in said plans and specifications described; but the same or any extra work, which shall be directed to be done, shall not vitiate or determine this contract, but, on the contrary, the same shall remain in full force.
    “And it is expressly agreed and understood that said party of the second part assumes all risk of variance in the quantities set forth in this said detailed bid for said work, and that they will fully complete said portions of carpenter work in accordance with said plans and specifications, whatever quantities may be required therefor, at the rates hereinafter, mentioned.
    “And the said party of the second part further agrees if delayed in, or prevented from the performance of the said -work, at any time, by any of the other contractors or workmen on said building, to forthwith give notice in writing to the said architect and superintendent of said delay or prevention. If the said party of the second part shall fail to proceed with, said work according to this contract and the said plans and specifications, or shall not proceed "therein to the entire satisfaction of said architect and superintendent, it shall be lawful for said board, after three days’ notice, signed by the president of the said board, to be left -at the place of business, or given to the said party of the second part, of their intention so to do, to employ any other person by contract, days’ work, or otherwise, to proceed with the said work, and to complete the same, and, on the expiration of said notice, the said contract shall, at the •option of said board, become void as to the said party of the second part, but without prejudice to any right of action in the said city, which the said party of the second part may be subject to, for uot proceeding with the said work pursuant to this contract; and the amount already paid to the said party of the second part, under this contract by the said party of the first part, shall be considered to be the full value of the work executed up to the time when such notice shall have expired, and no further claim whatever shall be made by the said party of the second part, for contract work, or additional work which might have been done up to that time ; and the material, whether prepared or unprepared, which may be upon the premises, •shall become the property of the said city without further payment for the same.
    “The said city agrees to'pay the said party of the second part for the full and complete performance of the said portion of carpenter work to the entire satisfaction of the said architect and superintendent, to be evidenced by his certificate, and also to the satisfaction of said board, at the rates specified in the bid, signed by him, annexed hereto, and made part hereof, by the quantities, without extras.
    “And the said city further agrees, that, upon the completion of portions of the said work to the satisfaction of said architect and superintendent, and of said board, and the production of a certificate from said architect and superintendent, showing the amount, kind, and value of the work done, and wholly unpaid for, she will pajr eighty per cent, on the amount of the said certificate, and the balance upon the completion of the work, on the production of the certificate first above mentioned.
    “In' witness whereof, the said city of Cincinnati, by CharlesE. "Wilstach, president, and J. J. Quinn, secretary of the board of hospital commissioners, thereunto duly authorized, has hereunto caused her name and corporate seal to be affixed, and the said party of the second part has hereunto affixed their name and seal, the day and year above mentioned.
    “ W. M. CAMERON & CO.
    “ Witness L. Hinsdale. CITY OF CINCINNATI, By Charles F. Wilstach, Pres’t. J. J. Quinn, Sec’y Of Board of Hospital Oomm’rs. SEAT. OF THE CITY OF CINCINNATI.
    G. W. ARMSTRONG,
    as to C. F. Wilstach and J. J. Quinn.”
    After the testimony was all in, it having been taken subject to exception, the city excepted as follows: The mat-
    ter standing in the record thus :
    “1. To all testimony and exhibits with reference to-changes made, or extra work done, for which a written order was not given by the board of hospital commissioners.
    “ 2. To all testimony as to the declarations, admissions, or acts of individual members of the board of hospital commissioners, or of the architect and superintendent, or assistant superintendent, not authorized by the board.
    “ 8. To all testimony as to the dealings of the board of hospital commissioners, with other contractors than the plaintiffs.
    “ 4. To all testimony as to the dealings of the board of hospital commissioners, with other contractors than the plaintiffs, not shown to have been communicated to the plaintiffs previous to the doing of their work, and relied on by them..
    “ 5. To all testimony as to the attempted arbitration in. 1869, after the erection of the hospital, of the matters in dispute between the plaintiffs and defendant.
    “ 6. ,To all testimony as to the items set forth in the sup- • plemental petition, filed with referee in this case April 9, 1872.
    “7. To all testimony on the items mentioned in tlm amended petition, filed-, so far as relates to said items so amended.
    “8. To all testimony relating to the claims for extra, work, loss of profits, and lumber thrown on plaintiffs’ hands by reason of change of roof.
    “ 9. To all testimony taken in rebuttal, which was not properly rebutting testimony.
    “ 10. To the testimony of A. B. Mullett, a witness called on behalf of the plaintiffs.
    “ 11. To all testimony with reference to the construction or meaning of the last item of the printed form of bid attached to the plaintiffs’ contract.”
    The defendant filed the following motion :
    “ Now comes the defendant, and moves the referee h> strike out as incompetent and irrelevant:
    “ 1. All evidence relating to any changes made, or extra work done, without a written order from the board of hospital commissioners.
    “ 2. All testimony as to the declarations, admissions of individual members of the board of hospital commissioners,, or of the architect and superintendent, or assistant superintendent.
    
      “ 3. All testimony as to the dealings of the board of hospital commissioners with other contractors than the plaintiffs.
    “ 4. All testimony as to the dealings of the board of hospital commissioners with other contractors than the plaintiffs, not shown to have been communicated to the plaintiffs previous to the doing of the work, and relied on by them.
    
      “ 5. All testimony as to the attempted arbitration in 1869, after the erection of tbe hospital, of the matters in ■dispute between these plaintiffs and this defendant.
    “ 6. All testimony as to the items set forth in the supplemental petition, filed with the referee in this case, April •9, 1872.
    “7. All testimony on the items mentioned in the .amended petition, filed with the referee in this case-, so far as relates to said items as so amended.
    “ 8. All testimony relating to the claims for extra work, loss of profits, and lumber thrown on plaintiffs’ hands by reason of change in the roof.
    “9. All testimony taken in rebuttal, which was not properly rebutting testimony.
    “ 10. The testimony of A. B. Mullett, a witness called on behalf of the plaintiffs.
    “ 11. All testimony with reference to the construction or meaning of the last item of the printed form of bid attached to the plaintiffs’ contract.
    The city also made the following motion: •
    “Now comes the city of Cincinnati, defendant herein, .and moves to strike from the files the supplemental petition herein filed April -, 1872, and the amended petition, filed-, 1872.
    “ The said testimony having been, by agreement, received when offered, subject to the exceptions of either party, when the testimony should have been closed. Said exceptions and motions by the counsel for the defendant being the only ones taken or made, counsel for the plaintiff having taken or made none. And the said motions, cited above, having been folly argued by opposing counsel, the ■court being fully advised in the premises, finds that the •said 5th, 9th, 10th, and 11th exceptions and motions, as .above set forth, are well taken, and should be granted, except so far as the testimony referred to in the 5th exception and motion may be necessary for the identification of ■exhibit Gr; and that the said 1st, 2d, 3d, 4th, 6th, 7th, and 8th exceptions and motions, and the motion to strike from the files the supplemental and amended petitions filed; herein, which exceptions and motions are set out above,, are not well taken and should be overruled.
    41 Wherefore, it is ordered and adjudged that said 5th, 9th, 10th, and 11th exceptions, as above set forth, are well taken, and that said 5th, 9th, 10th, and 11th motions, as. above set forth, be, and they are hereby granted, except so far as the testimony referred to in the 5th exception and motion may be necessary for the identification of Exhibit G; and the evidence mentioned, as referred to by said 5th, 9th, 10th, and 11th motions, with the above exception, as-to the testimony under the 5th motion, necessary to the-identification of Exhibit G, be, and the same is hereby stricken out; and that the 1st, 2d, 3d, 4th, 6th, 7th, and 8th exceptions, as above set forth, are not well taken, and-, that said 1st, 2d, 3d, 4th, 6th, 7th, and 8th motions, and.. the motion to strike from the files the supplemental and amended petitions filed herein, as set out above, be, and-same are hereby overruled.
    44 To the granting of said 5th, 9th, 10th, and 11th exceptions and motions, as above set forth, and the striking-out of said testimony thereunder, the plaintiffs, by their* counsel, except, and pray the court to sign and seal their bill of exceptions, which is accordingly done.
    44 And to the overruling of said 1st, 2d, 3d, 4th, 6th, 7th,, and 8th exceptions and motions, and the motion to strike-from the files the supplemental and amended petitions filed; herein, as above set forth, the defendant, by its counsel,, excepts, and prays the court to sign and seal its bill of exceptions, which is accordingly done.”
    On the 23d of November, 1872, the referee made his report, and announced his conclusions of fact and law separately, as follows:
    
      ^ As matter of fact. — 1. That priorto January 1,1869, the-plaintiffs had performed labor, and furnished materials, in, and for, and about the carpenter work of the Cincinnati Hospital, of the value of two hundred and twelve thousand seven hundred and ninety eight 40-100 dollars ($212,798.40.);
    
      “ 2. That the plaintiffs were damaged by reason of a change being made, by defendant, in the plans of a portion of the roofs of the Cincinnati Hospital, for lumber thrown •on their hands, and loss of profits on the labor on said roofs, as changed from original plans at the time the contract was entered into for furnishing material for, and building the same, in the sum of five thousand three hundred and thirty-eight 77-100 dollars ($5,338.77.)
    “3. That plaintiffs have been paid, by said defendants, -on account of furnishing material and performing labor 'in, for, and about the carpenter work of the Cincinnati Hospital, the sum of one hundred and fifty-five thousand eight hundred and thirty-four 40-100 dollars ($155,834.40.)”
    “ As matter of law. — 1. That plaintiffs are not entitled to interest on the sum of five thousand three hundred and thirty-eight 77-100 dollars ($5,338.77), their damage, sustained by reason of change in the roof.
    “ 2. That said defendant owes said plaintiff' the sum of five thousand three hundred and thirty-eight 77-100 dollars ($5,338.77), for damages, sustained by reason of said change in plan of roof of said hospital; and the further sum of fifty-six thousand nine hundred and sixty-four 2-100 dollars ($56,964.02), balance on account of materials furnished and labor performed, in, for, and about the carpenter work of the Cincinnati Hospital, with interest on this last-named sum of fifty-six thousand nine and sixty four 2-100 dollars , ($56,964.02), from the 1st day of January, a. d. 1869, to the •4th day of November, a. d. 1872, the first day of the present term of court, at the rate of six (6) per centum per annum, amounting to thirteen thousand one hundred and thirty 20-100 dollars ($13,130.20): which said sums, five thousand three hundred and thirty-eight 77-100 dollars .($5,338.77), damages; fifty-six thousand nine hundred and sixty-four 2-100 dollars ($56,964.02), balance; thirteen thousand one hundred and thirty 20-100 dollars ($13,130.20), interest, amount to the sum of seventy-five thousand four hundred and thirty-two 99-100 dollars ($75,432.99), for which said sum the plaintiffs are entitled to judgment against said defendant, besides costs.
    On the 25th November, 1872, the city filed the following exceptions:
    “ Now comes the city of Cincinnati, defendant herein, by its counsel, and makes the following exceptions to the report of O. J. Dodds, Esq., referee herein, bearing date the 23d day of November, 1872, and to the decision of the issue in this case contained therein, as follows :
    “ 1. That the first section of the facts found, erroneously states, or implies, that the plaintiffs have performed labor and furnished materials in, for, and about the carpenter work of the Cincinnati Hospital, of the value of $212,-798.40.
    “ 2. That the second section of the facts found, erroneously states, or implies, that the plaintiffs were damaged, by reason of a change in the plan of the roof of said hospital, for lumber thrown on their hands, loss of profits, and labor on said roof as changed, in the sum of $5,338.77.
    “ 3. That the second of the conclusions of law, contained in the said report, is erroneous in every particular.
    “ 4. That to all the conclusions of fact, except the third, set forth in said report, and all the conclusions of law, except the first, set forth in said report, the defendant excepts.
    “ 5. That to the form of the report, and to' the substance of it, the defendant excepts.
    “ 6. That the said report is in favor of the plaintiffs, whereas it should have been in favor of the defendant.
    “ 7. That the following facts are not stated in the findings of fact in the said report, namely:
    “ a. That no written order was presented by the plaintiffs for any alteration, addition, modification, or extra work.
    “ b. That it was admitted by the plaintiffs that they never received any written order for any alteration, addition, modification, or extra work.
    
      “ c. That the declarations, admissions, or acts of individual members of the board of hospital commissioners, or of the architect and superintendent, or of the assistant superintendent, were not shown to have been authorized, by the board of hospital commissioners ; nor shown to have-been subsequently ratified by said board.
    “ d. That there was no action of the board of hospital commissioners, authorizing the absence or non-presentation by the plaintiffs of written orders for alterations, additions,, modifications, or extra work.
    
      “ e. That the dealings of the boai’d of hospital commissioners with other contractors than the plaintiffs were not shown to have been communicated to the plaintiffs, previous to the doing of their work, and relied on by them.
    
      “f. That the supplemental petition in this case was filed before the referee on the 9th of April, 1872.
    
      “g. That the amended petition in this case was filed before the referee on the-day of April, 1872.
    “ 8. That the following conclusions of law upon the facts-in the case, are not contained in said report, namely :
    “ a. That the admission that no written order was given-to the plaintiffs for any addition, alteration, modification, or extra work, is a defense to any claim of plaintiffs for compensation for any such addition, alteration, modification, or extra work.
    “ b. That the non-production by plaintiffs of any written order for any- addition, alteration, modification, or extra work, is a defense to any claim of plaintiffs for compensation for any such addition, alteration, modification, or extra work.
    “ c. That the plaintiffs are not entitled to receive compensation, on the principle of quantum meruit, for any addition, alteration, modification, or extra work, for which no written order was given to the plaintiffs, or presented by them.”
    “ d. That the defendant herein is not bound by any individual declarations, admissions, or acts of members of the-board of hospital commissioners, or of the architect and superintendent, or of the assistant supei'intendent, the same-not having been shown to have been authorized by the board of hospital commissioners, or subsequently ratified by the said board.
    “ e. That the defendant herein is not bound by the dealings of the board of hospital commissioners with other-contractors than the plaintiffs; the same not having been shown to have been communicated to the plaintiffs, prior to their doing the work, and relied on by them.
    “/. That the supplemental petition, filed herein before the referee, on the 9th of April, 1872, was improperly filed, and should be stricken from the files; and the items therein set forth are not to be considered in determining the amount, if any, due in this case from the defendant to the plaintiffs.
    
      “g. That the supplemental petition, filed herein before the referee, April 9, 1872, contains no new matter arising since the filing of the original petition in the case, nor does it comply with the requirements of the code for the apthorization of the' filing of a supplemental petition; and it should therefore be stricken from the files, and the items therein contained are not to be considered in determining the amount, if any, due in this case from the defendant to the plaintiffs.
    “ h. That the amended petition, filed herein before the referee, on the 9th day of April, 1872, was improperly filed; and it should be stricken from the files, and the items therein set forth, so far as they are so amended, are not to be considered in determining the amount, if any, due in this case from the defendant to the plaintiffs.”
    And on the same day, to wit, November 25, 1872, the defendant, by its counsel, filed with the referee the following motion for a new trial:
    “Now comes the city of Cincinnati, defendant herein, by its counsel, and moves the referee for a new trial in this action for the following reasons, viz:
    “ 1. That the decision of the referee given in this case is against and contrary to the evidence of the case. . ,
    
      “ 2. That the decision of the referee given in this case is against and contrary to the law of the case.
    “ 3. That the amount found by the decision of the referee to be due the plaintiffs is excessive.
    “ 4. Error in the assessment in the decision of the referee of the amount to be recovered by the plaintiffs, such amount, as fixed by the referee, being too large.
    
      “ 5. Errors of law occurring at the trial and excepted to by the defendant, which errors are shown in an entry heretofore filed before the referee, the referee having refused to allow certain exceptions, and having overruled certain motions set forth in said entry.
    “ 6. Other errors apparent in the record.
    “ 7. Errors apparent in the report of the referee.”
    This mol ion was overruled by the referee, and the bill of exceptions having been made up, a motion was made in the superior court to set aside the referee’s report; also, a motion to order the referee to file a supplemental or amended report, specifying therein what items claimed by the plaintiffs against the defendant were allowed by the referee, and what amounts were allowed on said items, which together amounted to the total sum set forth in the report; also, to specify what items, if any, claimed by plaintiffs against defendant, were disallowed by the referee.
    The case was then reserved to the general term for the •decision of all questions arising upon the pleadings, bill of exceptions, motions, and exceptions.
    The superior court, after making some alterations in the findings of the referee, rendered judgment for Cameron in the sum of $73,747.58, with interest from June 2, 1873.
    All the proceedings are before us on error.
    
      Warrington $ Peek, for plaintiff in error.
    Matthews, Ramsey $¡ Matthews, for defendants in error.
    [No briefs for either plaintiff or defendants in error were -iound on file by the reporter.]'
   Wright, J.

We will first dispose of sundry assignments •of error, which may be said to be preliminary to the main questions involved.

The city alleges error in the action of the referee in this: After the trial before him had begun, Cameron, against objection, filed a paper, styled “ supplemental petition,” claiming an additional sum for items not mentioned in the ■original account. Counsel for the city say, with truth, that under section 142 of the code a supplemental petition may be filed, alleging facts “ occurring after the former petition,” etc., but we do not think that the mere name gives force to the pleading, so much as the allegations it contains. This paper might just as well have been called an amended petition, and we can not see how an omission so to name it, can affect any substantial right, and under the liberality allowed in the matter of amendments, we do not perceive any vital error on the part of the referee in this regard. The same may be said as to the objection to the filing of the amended petition. Both these pleadings had for their object the setting up of additional items of an ac■count pf great length. If any thing had been overlooked in the original petition, it was entirely proper to bring it in by some subsequent pleading.

After the report had been returned into court, counsel for the city made a motion to order the referee to file a supplemental or amended report, specifying what items claimed by plaintiffs were allowed by the referee, and what amounts were allowed on such items which together amounted to the'total sum set forth in the report; and also to specify what items, if any, claimed by plaintiffs, were ■disallowed by the referee in making up his report. This motion was overruled, which is claimed to be error.

This motion does not appear to have been made while the cause was in the referee’s hands, nor does it .appear that the city called upon him to make any more detailed or specific report while the case was pending before him. Had this been done, doubtless the officer would have gone into -the particulars required, but how was it error iu him not to do what he was not asked to do ?

The referee is substituted for the court, and the cause proceeds before him as though it was tried in court, and upon submission. Code, 283 ; Lawson v. Bissell, 7 Ohio St. 129; Bell v. Crawford, 25 Ohio St. 402.

Nor do we think that the court erred in not sending the case back for the specifications required by counsel for the city. This is held to be entirely a matter of discretion. Averill Coal and Oil Co. v. Verner, 22 Ohio St. 372. In this case, a motion was made to recommit the report to the referee, that the party might except to the findings, and tender a bill of exceptions to the referee for allowance. A refusal to allow the motion was not error, the matter being discretionary. If the refusal to send the report back to' allow exceptions was not error, a refusal to do so for the purpose of having the report made specific in order to make exceptions to the specifications, could not be error.

There were no proper exceptions taken by the city to evidence, during the progress of the trial before the referee. Scattered through the record are some twenty-three instances, where an objection has been noticed, but it is not stated who made the objection, what the action of the referee upon it was, nor does any thing in the nature of an exception appear. There is, therefore nothing, in the nature of objection to evidence, occurring at the trial, of which a court of error could take cognizance, except in a single instance. Upon page 371, it appears that one A. B. Mullett was called, sworn and testified; and then follows this: “ The counsel for defendant having then and there duly excepted to the calling of said witness.” No objection is made to the evidence he gave, and we can not see' how an objection to the witness can invalidate his testimony. Counsel, however, do not press the point, and we pass it.

"With regard to the pleadings it might be said, that they áre general in form. The petition is under section 122 of the code, on an account, as has been stated, a copy of which is attached. A petition may be so made, although there was a special contract, if it had been fully performed, or if the additions or modifications had been sanctioned by defendants, and, in such case, indebitatus assumpsit would lie, or plaintiff might elect to plead specially.

In answer, the city makes no objection to 'the mode oí ,-stating the cause of action; there is no denial of liability, except in amount; no item of the account is specifically denied; no want of .power in the board of’hospital commissioners is ’ pleaded; the want of written orders is not insisted on ; nor the fact, if it be one, that the amount of the appropriation was exceeded. All these matters were substantial matters of defense, and should have been pleaded, but the answer, in its terms, by implication, if not direct admission, concedes the capacity of the board to make this contract and its validity; the power of the board to contract for additions, extras, etc., and takes issue only ■on the amount and value.

Upon this state of pleadings it appears to have been agreed, that the evidence should be received, subject to exceptions, and at the end, the city made certain exceptions, eleven in number. This is one : “ To all testimony as to .the dealings of the board of hospital commissioners with other contractors than the plaintiffs.” This is an- example •of the rest, and might be called a general exception. To .give a party any benefit from such an exception, would require the court to go through this entire record of seven hundred pages, and pick out all items of evidence which the exception might, by any possibility, cover, and if we were to repeat this investigation for each of the eleven exceptions, it may be easily seen that such a voyage of dis•covery would be not only uncertain in results, but boundless in extent.

An exception of this kind should be, at least, as discriminating as that to the charge of the court. The party should himself present, in totidem verbis, the evidence to which he desires to object, and which he desires to rule out; .or, at least, indicate so that it can be ascertained with reasonable certainty. It is not for tbe court to proceed upon an exploring expedition, upon an intimation that it is desirable.

It is claimed by the city that the board of hospital commissioners were only allowed a certain sum for building the hospital ; that this limit of expenditure had been already reached, and it was impossible to go beyond it for the purpose of paying Mr. Cameron, and he is therefore without remedy. To ascertain if this-be so, we must examine the statutes bearing upon the subject.

April 6, 1866, a law was passed (S. & 8. 884), to provide for the erection of hospitals in cities of the first class. By the second section, a board of “hospital commissioners” was created, who were “ authorized to erect a suitable building for a hospital on the site dedicated for that purpose. They shall have power to adopt a plan, to appoint and fix the compensation of a clerk, an architect, and a superintendent of the work, or either of them, and to make all eont'racts.for the execution of the same.” By other sections these commissioners are authorized to cause plans, specifications, drawings, and forms of bids and contracts to be prepared. The contracts are to be made in the name of the-city. Contracts for work and material are not to be made-except after thirty days’ notice by advertisement.

Efom these provisions it is apparent, that the general power is given to these officers to build the hospital, and to-make the necessary contracts therefor.

The commissioners then, having the general power to-build a hospital and to make the necessary contracts therefor, section seven of the lawr as amended (S. & S. 886), provides “ that for tbe purpose of raising money to defray the expenses accruing,” etc., from the erection of the new hospital, the “ city council ” is authorized to issue bonds. The-aggregate amount of which shall not exceed $500,000, the-bonds not to be issued until the question of building is submitted to a popular vote.

By a subsequent law, May 5,1868, (S. & S. 886), the “ city”" is empowered to issue $250,000, more bonds “ for the purpose of completing and furnishing the said hospital.” It is claimed that these laws limit the amount of expenditure to-$750,000, and that no debts in excess of that amount can be paid.

It has been seen that the building of the hospital, preparing plans, making contracts, etc., was left to the hospital commissioners, and it might, therefore, be argued, that the-amount of expenditure was to be determined by them. It was the “ city council ” and the “ city” that was to issue-the bonds.

The law here appears to recognize two bodies, with different jurisdiction and powers, to act on behalf of the city. The board of hospital commissioners to erect the building, and the “ city council ” to issue the bonds, and it does not necessarily follow that a restriction, if such there be, upon the one, equally limits the action of the other.

In Green v. Mayor of New York, 60 N. Y. 303, the charter of the city required contracts “ made or let by authority of the common council” to be upon ten days’ advertisement. By the act of 1871, to extend the distribution of Croton water, the corporation was authorized, by the commissioner of public lauds, to expend, in making certain improvements, a sum not exceeding $1,500,000. It was held that the commissioner had sole and exclusive control of the work, that the common council had no authority or jurisdiction over the subject, and the law requiring ten days’ advertisement, applied only to contracts let by the council, and not to them let by the commissioner. A like view is maintained in People v. Van Nost, 64 Barb. 205.

So, here, it might be argued that the law had created two separate bodies to act in this manner — the council to issue the bonds, and the board of hospital commissioners to erect the building, and do all pertaining thereto. And though the city might not be able to issue more than the prescribed amount of bonds, does it necessarily follow that the board can not, under any circumstances, go beyond that amount ? Or, perhaps, it might be better to state the proposition thus: If the board have gone beyond the amount, and the city has accepted the work, and is enjoying the benefit of it, can it refuse payment?

It will be observed that nowhere in these statutes is there expressed, in terms, a limit as to the cost of the building.

They do not say in so many words that the hospital shall not cost more than $750,000, nor that the commissioners shall expend no more than that sum. There is a limit to the amount of bonds to be issued — a limit applicable only to the council and city.

In the ease cited by the city, Curtis v. United States, 2 Nott. & Hun. 144, it was held “that a statute limiting the amount of expenditure is notice, in law and in fact, to the contractor, that the ofiieers of the government can not exceed the prescribed bounds. If they are exceeded, the claimant must be deemed to have gone beyond the fixed limit at his own risk.” But in this case there was a fixed limit in the statute. It provided that the secretary of the treasury might erect a mint, etc., “ at a sum or sums which shall not in the whole exceed the sum of $300,000.”

It can only be that the board is limited to the sum named, by holding that, as a fund was provided, that fund can not be exceeded. But it is not always true that the amount of the appropriation, is the controlling feature. If there is an. express law authorizing a work, and an appropriation provided to pay for it, and in the progress of the work it is found that the amount is not sufficient, what shall be done ? Is the work to be abandoned, and all the money spent to be lost? "Why shall that part of the law providing the fund be held to override every other part, and nullify the express authority given to do the work ? Is it not more consonant with approved rules of construction to say that, taking the whole law together, its primal object is the construction of the building or improvement, and that the appropriation is secondary, leaving its deficiencies to be supplied by application to the law-making power, or to those implied powers that may always be found adequate to carry into execution those which are express? Nor is it an answer to say this opens the door to thieving and swindling; we are speaking of cases where thieving and swindling are not an element of consideration.

In Fowler v. United States, 3 Court of Claims, 43, the appropriation was a given sum, for the specific work; it exceeded that sum, yet the contract was held valid.

In further support of the proposition that the limit of expenditure has been reached, and that payment of the Cameron debt can not he made, the city cites the act “ to limit the power of public officers and agents in making •contracts,” passed March 30, 1857. 1 S. & C. 889. The first section of that law is as follows : “ It shall be unlawful for any officer or agent of the state, or of any county, township, city, or incorporated village therein, who may be intrusted with the construction, improvement, or keeping in repair any public building or work of any kind, or with the management or providing for any public institution of whatsoever kind, to make any contract or contracts binding, or purporting to bind, the state, or any such county, township, or incorporated village, to pay any sum or sums of money, not previously appropriated for the purpose for which such contract or contracts are made, and remaining unexpended and applicable to such purpose, unless such •officer or agént shall be lawfully and expressly authorized to make such contract or contracts.” The second section expressly holds such officer or agent of the city liable, and the city exempt.

It is unlawful, under this act, for the officer or agent of municipal bodies to make any contract or contracts to pay sums of money not “preciously appropriated.” If, therefore, the appropriation is a given one, and the contracts are just equal to that amount, those contracts are valid. If contracts are thereafter made, so as to be in excess, though such contracts might be invalid, how could those originally made be so ? Being once valid, a subsequent exercise of unlawful authority could not destroy that validity. City of Lansing v. Van Gorder, 21 Mich. 456. If, therefore, when Cameron’s contract was made, its amount, with that of others, did not exceed the appropriation, any subsequent excess could not defeat his rights.

What, then, is the fact ? If it were true that the board had already contracted up to the full sum, and then Cameron had made his contract, all of which was beyond the limit, there would be force in the argument that he was bound to know the law and the extent of authority conferred upon the agent with whom he was dealing, and therefore he could not recover. But we do not understand the record as showing any such state of fact. We do not understand the record as showing that when this contract was made the limit had been reached. Indeed, from Dr. Quinn’s testimony,.we understand the reverse. He states that when the bids were all in, it was found that the aggregate exceeded the amount they were authorized to spend. The board did not desire to go beyond the limit, and they set to work devising how they should keep within it. The architect made a calculation what work the appropriation would cover, and they awarded the contracts accordingly.

If Cameron’s right of recovery is to be defeated, on the ground that the limit of expenditure was exceeded, it should be clearly shown that at the time he. made his contract that limit had been reached. This is not done; and if, when his contract was made, the board had not gone beyond the limit, the contract was valid, at least in this respect. If subsequently the board went on and made other contracts, and exhausted the fund in payment of claims originating after that of Cameron’s, this can not be set up as a defense why he should not be paid.

The next point to be considered is one discussed by counsel under the title “ written orders.”

By section 5 of the act relating to hospitals, it is provided as follows : “All contracts shall be made in the name of the city, and it shall be stipulated therein that the contractors will not execute any extra work, or make any modifications or alterations of the work mentioned in the specifications and plans, unless ordered in writing by the board, and that they will not claim any pay for the same unless such written order is given.”

It is urged by the city that this clause of the statute is not directory merely, but mandatory, and a very elaborate argument is made upon the subject. If we rightly apprehend the argument, it is that the statute peremptorily demands written orders for all work done, and if they are omitted, a recovery can not be had for such work. It is supposed that here corporate power is given to act in a certain way, and action in any other way is null and void, and the following authorities, with many others, are cited r “ Where a corporation relies upon a grant of power from the legislature for authority to do an act, it is as much restricted to the mode prescribed by the statute for its exercise as to the thing allowed to be done.” Farmers’ Loan and Trust Co. v. Carroll, 5 Barb. 615, 649. “ The act of incorporation enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract thau if the body had never been incorporated.” Head v. Prop. Ins. Co., 2 Cr. (U. S.) 127.

These propositions of law, in the cases to which they are applied, are not denied, and we might admit to the fullest extent the position that the statute is mandatory; and the-question is, what does it command? It says that, as to all contracts, “it shall be stipulated therein” that the contractor shall do no extra work, etc. That stipulation is. contained in the contract, in the following words :

“ The said party of the second part (Cameron) further agrees not to execute any other than the above portions of work, or make any alterations or modifications in the work mentioned in the specifications and plans, unless ordered in writing by the said architect and superintendent, and countersigned by the board, nor to claim payment for the same, unless such written order be produced.”

There was extra work, and there were modifications and alterations, and there were no written orders, and it is claimed that there can be no recovery for these extras. The contract and statute, says the city, are both so clear, positive, and peremptory, that the board can not waive or dispense with any provision of either; they must be complied with to the letter, or every thing done is a vain thing.

To all laws and to all contracts there is a spirit as well as a letter, and if both can fairly be complied with by a construction that reaches what is the justice of a case, the ends of the law are attaiued. Instruments are not to be •construed so as to arrive at absurd or impossible results.

The law was that a corporation acted by its seal only. If this were carried out in practice, no corporation could transact its business a single day. A corporation can only act through its directors, but it is hardly necessary to convene the board, preparatory to the purchase of a load of coal or box of matches.

When the law provides that a corporation shall only contract in writing, no matter how positive or peremptory the language may be, it can not be made a rigid, unbending rule in every case which can by any possibility arise.

While the contract is executory, the rule may be enforced ; but after the contract has been executed, and all its stipulations fully performed, the corporation having received the benefit, it is too late to apply the rule. Pixley v. R. R., 33 Cal. 183.

Before this work of extras had been done, it might have been easily prevented by the board. But if they actually directed it to be done; if the contractor solicited written orders, and was informed they were not necessary; if thus the work was done and well done, the city receiving the benefit of it, and the only defense against payment is that the orders were not in writing, the law will not put a construction upon the statute or contract that will make such defense successful. While recognizing the fact that the act was designed to prevent fraud or imposition, the court will be careful to see that it is not made the occasion of either.

The laws with regard to corporations redound with provisions and restrictions as to the mode and manner of contracting. These provisions are sometimes most stringent, and yet they are not always observed, simply because it is impossible to do so.

If tbe corporation clearly has the power to do a given thing, although a particular form is prescribed, which shall be the evidence of its action, the absence of this evidence does not destroy the power.

If corporate transactions are void because the prescribed form is not pursued, it does away with much of the law of implied contracts as it relates to such bodies. That corporations are liable upon implied contracts, even where it is required that they should be express, is too well settled for dispute. 2 Kent Com. 291; Argenti v. City of Francisco, 16 Cal. 255 ; Maher v. Chicago, 38 Ill. 266; Messenger v. Buffalo, 21 N. Y. 196.

The following eases may serve to show the extent to which courts have gone in holding corporations to accountability, where attempt was made to escape it:

In Pixley v. Railroad, 33 Cal. 183, the charter of a railroad provided that “no contract shall be binding on the company unless made in writing.” The plaintiffs were attorneys, and were employed, by verbal agreement merely, to conduct litigation. They did so, and then sued for their fees, and the company defended on the ground that the contract was not in writing. It is probable that the first impulse that arises in every mind is to say that if such defense is law, it is none the less rascality.

It is, however, held in that ease, that the contract, having-been executed, the corporation having received the consideration can not escape liability.

In Fister v. Trustees of School District, 15 Barb. 323, a teacher sued for her wages. She was employed by one of' the trustees only, and it was defended that she was not employed at a legal meeting of the board. The court held that the contract having been executed, where a person is employed by one assuming to act for the corporation, and the employe renders services with the knowledge of the officers, the corporation must pay for those services. Though ■where the contract is still executory, and nothing done un•der it, it might be different.

Perhaps it is true that in some eases a different rule may be applied to a mere private corporation like a railroad and a public or municipal corporation. It is often held that in case -of a municipal corporation the party dealing must advise himself of the extent of chartered power, and must know exactly how far the public agent can go in binding his principal, but even here it is often true that the same rule is applied to the corporation as is applied to an individual. An elaborate case on the subject is Argenti v. Francisco, 16 Barb. 255. It holds that contracts of corporations, whether public or private, stand upon the same footing with the contracts of natural persons, being subject to the application of the same principles with regard to ratification and estoppel.

The plaintiff entered into contracts with an officer of the ■city for the making of certain improvements in the city. The improvements were under the supervision of city officials, who approved and received them. The city authorities were informed of the facts, and took no steps to repudiate the contracts or advise plaintiff that he should not be paid. The city was held liable, although there was no evidence that the officer was expressly authorized to make the contracts. The silence of the city authorities, under the circumstances, sanctioned the officer’s acts, and estopped the city from denying his authority. She having acquiesced in the contracts from the beginning to the end •of the improvements, never questioning their validity, until ■she had received all the benefits of performance, to repudiate them now would be a fraud on the plaintiff. Seagraves v. Alton, 13 Ill. 266.

In City of Dayton v. Pease, 4 Ohio St. 80, with regard to injuries to third persons, municipal corporations are held to be liable just as individuals. A. & A. Corp., §§ 219-238; San Francisco Gas Light Co. v. City, 9 Cal. 453.

It is perhaps well to bear in mind the fact that two distinct characters are assigned to municipal corporations. Dillon speaks of the governmental, legislative, or public character ; and also of the proprietary or private character. 1 Dill. Mun. Corp., § 39. In its governmental or public character, it represents the state, while in the other it is a mere private corporation. As a political institution, the municipality occupies a different position, and is subject to different liabilities from those which are imposed upon the private corporation. But because these two characters are united in the same legal entity, it does not follow that the shield which covers the political equally protects the private corporation.

The power given a city to construct sewers, is not a power given for governmental purposes; nor is it a public municipal duty imposed upon the city, like that of keeping streets in repair, but it is a special legislative grant to the city for private purposes. The sewers of the city, like its works for supplying the city with water, are the private property of the city; the corporation and its corporators —its citizens — are alone interested in them; the outside public, as people of the state at large, have no interest in them, as they have in the streets of the city, which are public highways. Detroit v. Corey, 9 Mich. 165.

The corporation of a city possesses two kinds of powers, one governmental and public, and, to the extent they aro held and exercised, is clothed with sovereignty; the other private, and, to the extent they are held and exercised, is a legal individual. The former are given and used for public purposes, the latter for private purposes. While in the exercise of the former, the corporation is a municipal government, and while in the exercise of the latter is a corporate legal entity. Loyd v. Mayor, 1 Seld. 369.

With regard to the liability of a municipal corporation for the acts of its officers, the distinction is, between an exercise of those legislative powers which it.holds for public purposes, and, as a part of the government of the country, and those private franchises which belong to it as a creature of Ihe law; within the sphere of the former, it enjoys the exemption of government, from responsibility of its own acts, and for the acts of those who are independent corporate officers, deriving their rights and duties from the sovereign power. But in regal’d to the latter, it is responsible for the acts of those who are in law its agents, though they may not be appointed by itself. Commissioners v. Duckett, 20 Md. 476.

By reason of this distinction it is that the city is liable for certaiu acts of omission of officers and agents, while in other cases, it is not. It may be generally held liable for the neglect of its agents. But it is not liable for the acts of a mob, although its duty is to keep the peace. Western College v. Cleveland, 12 Ohio St. 375; Prather v. Lexington, 13 B. Mon. 559 ; Ward v. Louisville, 11 B. Mon. 184.

Nor is a city liable for damages done by fire, though its duty is to provide fire apparatus, and keep in repair, public cisterns, and it fails in this duty. Wheeler v. Cincinnati, 19 Ohio St. 19. The reason given therefor in Brinkmeyer v. Evansville, 29 Ind. 191. is, that a municipal corporation is, for the purposes of its creation, a government possessing to a limited extent sovereign powers, which,, in their nature, are either legislative or judicial, and may be denominated governmental or public. The extent to which it may be proper to exercise such powers, as well as the mode of their exercise, by the corporation, within the limits prescribed by the law creating them, are, of necessity,, intrusted to the judgment, discretion, and will of the properly constituted authorities, to whom they are delegated. And being public and sovereign in their nature, the corporation is not liable to be sued, either for a failure to exercise, them, or for errors committed in their exercise. But when duties of a purely ministerial character are expressly enjoined by law in such corporation, or arise by necessary implication, they are responsible for any damages resulting to individuals from a neglect to perform them, or from their performance in an improper manner. Small v. Danville, 51 Me. 359; Lorillard v. Monroe, 1 N. Y. 392. It is important, therefore, to bear in mind these two phases of corporate existence. When this hospital was being built, or contracted for, the city was exercising no governmental function, it was not appearing in its political character, or manifesting any of the attributes of sovereignty. It was-the owner of land, upon which it was desirous of building a house; it was managing its own property. Oliver v. Worcester, 102 Mass. 489. Where it is doing merely this,, how does it, fro hac vice, differ from any other private corporation ? If a city should undertake to run a railroad, can any one doubt but that it would be liable, just as a railroad corporation would be, under like circumstances? Bailey v. New York, 3 Hill, 531.

Returning now to the statute, it provides that this stipulation shall be inserted in the contract; and, it is well said, by counsel, that this clause should have no other, or more force, than any other clause, and might be waived, or dispensed with, if the parties so agreed. The statute provides for the whole contract, and gives authority to every part; and there seems to be no reason why one part should be of graver import than another.

But let us see what is the object of the statute,. Plainly it is to protect the city and tax-payers from overcharges, under the guise of extras, alterations, etc. But, as against-whom was this protection desirable? Not against the acts of the board of commissioners. They did not do the extras, and execute modifications and alterations, for the purpose of getting pay therefor. It was the contractor who did this, and it was against the contractor that barriers were to be erected. The statute says, the stipulation, in the contract, shall be, that the “ contractors shall not execute any extra work, or make modifications or alterations,” and “they will not claim pay,” etc.

The apprehension was, that contractors might go on, and do work outside of the contract, without the knowledge or consent of the board, and then claim pay therefor, although the board would not knowingly have allowed the work to be done. It was to limit the power of the contractor to bind the city by implied contracts for extras and the like. It is to impose upon him a limit, as to the extent to which, he shall go. He shall go to the extent of his contract, and, of his own motion, no farther.

There is no limit, however, imposed upon the board, as to what extras or modifications they may make, as far as expense is concerned, unless it is the limit of the appropriation. It does not appear that the legislature thought it necessary to guard against the board in this particular; for they must be held to have power to order extras, etc., the only restriction being, that it should be by written order. If there was danger that the board would exceed their authority, and defraud the city, in this matter of extras, the legislature would not have given them the fullest power to do so, only stipulating that they should do it in writing and by written orders. It is, therefore, evident to us, that the act, in providing for these written orders, intended to guard against the acts of the contractors, and not those of the board.

If, then, the contractor did nothing but what the board directed him to do, and intended he should do; if he went •beyond the limits of his contract, and did extras; not of his own motion; not without the knowledge and consent •of the board; but with their complete, though, perhaps, informal authorization, it would hardly seem proper that he should fall under any ban of the statute. While the statute seeks to guard against the fraud of the contractor, it should not be construed, if it can be avoided, so as to perpetrate injustice upon him.

Again: The necessity of their written orders was to protect the board; to prevent misunderstanding, between them and the contractor, as to what was to be done and what was not to be done. If a dispute arose, upon a settlement of accounts, between contractor and board, as to whether a piece of work was ordered or not, perhaps the board might fall back upon their contract, and ask, “ Where is your written order ? ” But suppose there was no dispute; suppose the board agreed that they did order the work, .and it was done as ordered, it would be a strained defense for them to say, there could be no recovery because there was no written order.

If, then, the written orders were only for the protection of the board, why might they not be waived when the necessity for them ceased.

In County of Randolph v. Post, 93 U. S. 502, it is held: “ It would be an unreasonable restriction of the rights and powers of a municipal corporation to hold that it can not waive conditions found to be injurious to its interests.”

In this case a county in Illinois had subscribed to the stock of a railroad, and was to issue bonds in payment of the subscription, provided the road was done by a certain date. This date for completion was subsequently extended, .and it was held that the county was authorized to waive .this .condition as to the time of completion, and that the bonds were valid.

And other cases may be cited where parties acting under statutory authority depart therefrom, and are yet held bound by their acts. In case of the United States, contracts made by the secretary of war must be in writing (12 Stat. at Large, 411); and yet, when such written contracts are made, they are sometimes departed from in those very .particulars where writings are most important, and yet the government has been held bound. As where a contract was made for the delivery of a large amount of supplies, by a given date, and were not delivered at that date, but long after, it was held that the statute was not infringed by .accepting the supplies after the day stipulated for delivery, .and that a verbal agreement to extend the time of performance was valid. Saloman v. United, States, 19 Wall. 17.

What are then the facts of the case9

And firstly, it must be remembered that in the contract the board reserves to itself liberty, from time to time, to direct or order any modifications or alterations- to be made in the specifications and plans, or in any portion or portions ■of the material or work, and in like manner to direct and •order the omission altogether of any portion or portions of the work in the plans and specifications, or to substitute any ■'other work or works in the place of such portion or portions, and such modifications, alterations, omissions, and 'substitutions may be so directed and ordered to be carried, •out by the board in respect to any portion of the work, but the same or any extra work which shall be directed shall not vitiate or impair the contract.

■ From this-it will be seen that the board intended to and did retain the power to make any changes they might please, and they put no limit upon their power in this re■spect. Furthermore, the contract provides that if the' contractor fails to proceed with the work according to contract, or shall not proceed to the entire satisfaction of the architect and superintendent, the board, on three days’ notice, may employ any other person to proceed with the-work and the contract, at the option of the board, shall be void; the board still reserving their right of action against the contractor for non-fulfillment of his contract. In case .of such notice given, the amount already paid to the contractor is to be in full of all work done up to that time, and he is to have no further claim; and all material, prepared ■or unprepared, which may be upon the premises, shall become the property of the city, without further payment.

These provisions might be said to be stringent in their nature, and it was evidently the purpose of the board to-retain full control in their own hands, and to place the contractor in such a position as that he should always be in their power, and doubtless this was the part of wisdom.

• The relations of the parties being such as are herein indicated, when the first departure from the original plan was made, Cameron refused to do the work unless under a written oi’der. Mr. Bate, assistant superintendent, told him that no written orders were given to any of the contractors, and that written orders had been abandoned. He still demurred, saying that the contract called for a written order, and he must have it. He then appealed to Dr. Quinn, a prominent member of the board, and who appeared to have the direction of affairs rather more perhaps than any other. Hr. Quinn told him that they gave no written orders for changes, and all he had to do was to follow the directions of Bate and Nash, the architect, and the board would pay him.

Cameron is not contradicted in this statement; upon the •contrary, he is corroborated. Dr. Quinn says Cameron spoke to him on the subject of alterations, and was told to carry out the orders of the architect. He further states that no written orders were given, and alterations were paid for without objection on account of the want of written orders. He says it was not the custom to give written ■orders, and he did not know of any being given. The matter was considered by the board, and not deemed necessary. Without going into the testimony at length, we .are satisfied that they simply abandoned that clause of the contract, and that no attention whatever was paid to it, and although there were many changes by the various contractors, it does not appear that a written order was given in any case.

In the next place all these additions, alterations, or changes from the original plans were made known to the board and authorized by it. Mr. Carlisle, member of the board and chairman of the building committee, says so in so many words. Cameron says he did nothing about the building but what he was directed to do, and Nash says it was all done under the supervision of himself and Mr. Bate. Nash says the board met twice a month, and thereat he gave a full history of what was being done, and full consultations were had; that when he made changes or .alterations, he had the authority of the board or building committee for so doing, and he can remember of no instance where Cameron did work outside of his contract, when he did not have the authority of Bate, himself, or the furniture committee.

In the next place, all the work done by Cameron was good and satisfactory; so says the architect. Mr. Carlisle .says no complaints were made by'the board'on account of materials or workmanship. Bate says the character of the work and materials was fully up to the specifications.

And, lastly, the city has received and is enjoying the benefit of the work. We are fully aware of the difficulty and delicacy of applying the doctrine of estoppel on the ground of the city having had the consideration. It is by no means true that because a corporation accepts and makes' use of the work done, that therefore it is estopped. The circumstances may be such that it can not help itself. A railroad can not forego the use of its entire track, because-it has a dispute with some contractor about extras in some bridge. In such case the argument that the company has accepted and used the work has no force whatever. Upon this ground the doctrine of estoppel only applies in those cases where the corporation may accept or reject with equal convenience. Zottman v. City of San Francisco, 20 Cal. 97;: Smith v. Brady, 17 N. Y. 173; Ellis v. Hamlen, 3 Taunt. 52; Bartholomew v. Jackson, 20 Johns. 28.

While, therefore, it might not be sufficient to base a recovery upon the sole ground that the city had received the benefits and therefore could not refuse the payment, the-other circumstances showing the justice of the plaintiff’s-claim, are strengthened by the fact that he has given a quid pro-quo.

We desire further to say that the remarks heretofore made upon the heads “limit of expenditures” and “ written orders,” are to be regarded as applying strictly to-the case in hand,. The authorities on the subject of municipal liability, when and how the body may be bound,, what its extent of authority is, under what circumstances it may deny, are not at all uniform. A remark as apposite as any we have happened to meet, is that of Field, C. J., in Argenti v. San Francisco, 16 Cal. 283 : “ Upon the general subject of the extent of the liability of a municipal-corporation, the authorities are a tangled web of contradictions, and it is difficult to assert any proposition with respect to the same, for which adjudications on both sides may not be cited.”

Therefore it is that words should be restrained unto the “ fitness of the matter.”

It is easy to conceive a case where the extent of an appropriation may limit the extent of municipal action, and mar.j such may be found in the books. If the charter of a corporation says it can only act by writing, often it will be, as it has been, that a party can not recover upon a mere verbal agreement. All we mean to say in this ease is, and it seems to be all that is necessary to the determination of the controversy, this: If the law makes a specific appropriation, which is claimed to measure the extent of corporate power, when a contract has been made which is within bounds and therefore valid, it can not be invalidated by subsequent action of the corporate authorities in concluding other contracts, the aggregate of which is in excess of the appropriation.

And though the law requires directions to the contractor to be iu writing, if the contractor solicits such writings, but the board dispenses with them as unnecessary, and otherwise directs work to be done, and work is done, as to payment for which no question exists, except the want of written authority, this is not sufficient ground of defense.

Judgment affirmed.

After the decision of the cause was announced and judgment entered, a motion for rehearing, was made in this cause, the city seeking to advance what it states to be new points.

A rehearing will not be allowed simply to assign new errors which were not assigned upon the original bearing. It is desirable that litigation should have an end, and that end is generally reached when the cause has been heard, fully considered, and finally decided. It is, however, proper to say that the points made in the motion were presented in the original briefs, and not overlooked by the court.

Motion overruled.  