
    SOUTH SIOUX CITY et al. v. HANCHETT BOND CO.
    Circuit Court of Appeals, Eighth Circuit.
    May 3, 1927.
    No. 7568.
    1. Appeal and error <@=>931 (3) — Where action on municipal bonds was tried without jury or request for declarations of law, judgment for plaintiff necessarily involved finding of facts in favor of validity of bonds.
    Where bondholder’s action against city was tried without jury, and no declarations of law asked by either party, held, judgment on motion for plaintiff necessarily involved finding of all facts favorable to validity of bonds.
    2. Municipal corporations <@=>931 — City held estopped to question legality of proceedings for issuance of bonds for paving.
    Where city had lawful power to issue bonds for paving work and where contractor’s work was accepted by city, and bonds given in payment recited that all things required by law had been done, held city was estopped to question legality of proceedings leading up to issuance of bonds.
    3. Municipal corporations <@=>374(1) — City, repudiating bonds given paving contractor, would nevertheless be liable to contractor or his assigne.e for money due under contract.
    City, giving bonds in payment of paving contractor, if successful in defending suit on bonds, would nevertheless be liable to contractor or his assignee for money due on paving contract.
    In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.
    Action by the Hanehett Bond Company against the City of South Sioux City and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    W. V. Steuteville, of Sioux City, Iowa (Wymer Dressler, of Omaha, Neb., and E.A. Burgess, of Sioux City, Iowa, on the brief), for plaintiffs in error.
    Arthur R. Wells and Carl'E. Herring, both of Omaha, Neb. (Halleck F. Rose, John F. Stout, and Paul L. Martin, all of Omaha, Neb., on the brief), for defendant in error.
    Before STONE and KENYON, Circuit Judges, and POLLOCK, District Judge.
   POLLOCK, District Judge.

This action was brought by the Hanehett Bond Company, a corporation (hereinafter, for convenience, referred to as plaintiff), against the city of South Sioux City, a municipal corporation (hereinafter called defendant), to recover judgment on one negotiable bond, of tbe denomination of $1,000, made and delivered by defendant, and on 766 coupons clipped from municipal bonds of tbe city. Certain property owners intervened in behalf of defendant city.

Tbe bond in action was one of an issue made by tbe city on July 1,1921, tbe amount of tbe issue being $39,000. This issue was a part of an entire issue of $239,000 made by the city to defray tbe expenses of making certain paving in tbe city and other improvements. $200,000 of these bonds were made and issued July 1, 1920. Tbe coupons in suit were clipped from this issue of bonds. Tbe contract for doing the work was let to one John'A. Beebe by tbe city. Tbe work was done in pursuance of tbe terms of the contract, and was approved and accepted and used by tbe city. Tbe contractor, Beebe, was paid by tbe city in these bonds so issued for that purpose, dollar for dollar. Each of tbe bonds contains the following recitals. In tbe bonds issued July 1, 1920, tbe following:

“This bond is issued under authority of chapter 50 of tbe Revised Statutes of tbe state of Nebraska for tbe year 1913, as amended and other pertinent statutes of said state, for tbe purpose of curbing, paving, and improving certain streets as pursuant to an ordinance duly passed by tbe mayor and council of said city as required by law; and it is hereby certified and recited that all conditions, things, and acts required by law to exist, to be or to be done, precedent to and in issuing of this bond have been, have existed and have been performed in due form and time, and that tbe indebtedness of said city, including this bond, does not exceed any limitation imposed by law.”

In tbe bonds issued July 1,1921, tbe following :

“This bond is issued under authority of tbe Revised Statutes of tbe state of Nebraska, 1913, as amended,, for tbe purpose of paying tbe cost of paving streets in improvement district No. 1 in said city, and in anticipating tbe collection of deferred unpaid special assessments levied to pay tbe cost of work in said improvement district, and said special assessment has been set aside and constituted a sinking fund for tbe payment of bonds issued to anticipate their collection, and is authorized by an ordinance duly passed by tbe council of said city, approved by the mayor thereof and published, as required by law.
“And it is hereby certified and recited that- all conditions, things, and acts required by law to exist, to be, or to be done precedent to and in tbe issuing of this bond have been done, have existed and have been performed in due form and time, and that the indebtedness of said city, including this bond, does not exceed any limitation imposed by law.”

Tbe bonds were made by tbe duly elected qualified officials of tbe city. No contention is made but that there was adequate statutory power granted to tbe city to issue tbe bonds in question. A jury to try tbe issues joined was waived, and the ease was submitted to and tried by the court.

At tbe conclusion of tbe trial both plaintiff and defendant city presented a motion for judgment; tbe motion of tbe defendant was denied, and tbe motion of the plaintiff sustained. No declarations of law were asked by either party. It is thus apparent all the facts necessary to support tbe judgment are determined in favor of tbe validity of tbe bonds. In this condition of tbe record, but little is saved in this ease for review. City of Mankato v. Barber Asphalt Paving Co. (C. C. A.) 142 F. 339; Seep v. Ferris (C. C. A.) 201 F. 893; C., M. & St. P. Ry. Co. v. Hormel (C. C. A.) 240 F. 381; Wear v. Imperial Window Glass Co. (C. C. A.) 224 F. 60; Highway Trailer Co. v. Des Moines (C. C. A.) 298 F. 71; LaCrosse Plow Co. v. Pagenstecher (C. C. A.) 253 F. 46, and many other eases.

While plaintiff in error makes and stresses several assignments of error, yet these questions in tbe main concern themselves with tbe legality of tbe proceedings leading up to the issuance of tbe bonds. However, as there was lawful power on tbe part of tbe city to issue tbe obligations of the city to pay for tbe work done by tbe contractor, Beebe, and as this work was done by tbe contractor for tbe city to tbe satisfaction of tbe city, and was accordingly accepted by tbe city, and these bonds involved in this action were made and issued by tbe city in pursuance of lawful statutory power, and were by tbe city employed in discharging its debt to tbe contractor, and when so issued by tbe city they contained tbe recitals above quoted, insuring tbe intended purchaser or owner of tbe same that all preliminary steps bad been taken in manner and form as by law required, if it should be now ascertained as a fact these recitals are untrue, tbe city would, and of right ought to be, estopped to so contend or prove. Loeb v. Trustee of Columbia Tp., 179 U. S. 472, 488, 489, 21 S. Ct. 174, 45 L. Ed. 280; U. S. v. Ft. Scott, 99 U. S. 152, 25 L. Ed. 348; U. S. v. Saunders, 124 F. 124, 59 C. C. A. 394; Knox County v. Aspinwall, 21 How. 539, 16 L. Ed. 208; Bates County v. Wills, 239 F. 785, 152 C. C. A. 571; Aurora v. Gates, 125 C. C. A. 329, 208 F. 101, L. R. A. 1915A, 910, certiorari denied 232 U. S. 722, 34 S. Ct. 330, 58 L. Ed. 814; Scott County, Ark., v. Advance-Rumley Co. (C. C. A.) 288 F. 739, 747-751, 36 A. L. R. 937; Chapman v. Douglas County, 107 U. S. 348-357, 2 S. Ct. 62, 27 L. Ed. 378; Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659; Illinois Trust & Savings Bank v. Arkansas City, 22 C. C. A. 171, 76 F. 271, 293, 34 L. R. A. 518; Dudley v. Lake County, 26 C. C. A. 82, 80 F. 672.

Even should the city he successful in its attempt to repudiate the bonds in suit, it would not thereby benefit its condition, for in such event, not having paid the contractor for what it has received and is using, he or his assigns would be entitled to the money earned under the contract owed by the city on the paving contract. Hitchcock v. Galveston, supra; U. S. v. Fort Scott, 99 U. S. 159, 25 L. Ed. 348; Chapman v. County of Douglas, 107 U. S. 357, 2 S. Ct. 62, 27 L. Ed. 378; Read v. Plattsmouth, 107 U. S. 575, 2 S. Ct. 208, 27 L. Ed. 414; Central Transp. Co. v. Pullman Car Co., 139 U. S. 72,11 S. Ct. 478, 35 L. Ed. 55; Fort Worth City Co. v. Smith Bridge Co., 151 U. S. 302, 14 S. Ct. 339, 38 L. Ed. 167; District of Columbia v. Lyon, 161 U. S. 207, 16 S. Ct. 450, 40 L. Ed. 670; De La Vergne Co. v. German Sav. Inst., 175 U. S. 42, 20 S. Ct. 20, 44 L. Ed. 65; Houston & Texas Cent. R. Co. v. Texas, 177 U. S. 91, 20 S. Ct. 545, 44 L. Ed. 673; Barber Asphalt Pav. Co. v. City of Harrisburg (C. C. A.) 64 F. 286; Missouri Pac. R. Co. v. Sidell (C. C. A.) 67 F. 468.

It follows the decision of the trial court is right, and must be affirmed.  