
    Stone v. Viele.
    Where a contractor for paving a street has failed to perform his contract, so that there is “a substantial defect in the improvement,” rvithin the meaning of Revised Statutes, § 2289, and an assessment against the abutting lots has been placed on the tax duplicate, and the county-treasurer is taking the necessary steps to sell such lots, under authority of the duplicate, the owners of such property may, in an action against the treasurer and the municipal corporation, enjoin such proceeding, unless it appear that it would be inequitable to do so. Secs. 1777, 1778, Rev. Stats., have no application in such case.
    Error to the District Court of Summit county.
    On December 20, 1881, Nelson B. Stone commenced an action in the court of common pleas of Summit county, against Henry C. Yiele, treasurer of that county. The cause was appealed to the district court, where a demurrer to the petition was sustained on the ground that sufficient facts were not set forth to constitute a cause of action, and the action was dismissed by the court. The question arising on the petition in error filed by Stone in this court is, therefore, whether the petition of Stone filed in the court below contains facts sufficient to constitute a cause of action against Yiele.
    The action was brought by the plaintiff in his own behalf and in behalf of other designated persons, and it is stated in substance in' tlie petition that the following are the facts: The plaintiff and the persons so named are owners of lots abutting on East Market street, between the original west line of the corporation of Middlebury -and the east line of High street, in Akron, which is a city of the third grade of the second class. On June 27, 1881, the city council having determined to pave, gutter and curb with stone the part of East Market street above mentioned, to the width of thirty feet, and having taken the proper preliminary steps, assessed in due form upon the abutting lots three dollars and sixty-two and one-half cents on each front foot thereof, being the estimated cost of the work and materials, payable in five annual installments, and, under appropriate resolutions, the council authorized the city to, and it did issue its bonds, and the proceeds thereof,. $40,854.56, were placed in the hands of the defendant, as treasurer, for the purpose of paying for the improvement. Notice having been given, the bid of the Austin Elag-stone Company was accepted, and on August 16th 188Í, a contract was entered into in due form, between the city and the company, by which the company agreed to furnish the material and do the work according to the plans and specifications, and to the acceptance of the street committee and the civil engineer, at specified prices.
    The contract contained, among others, the following stipulation: “ The party of the second part further covenants and agrees that all of said material shall be of the best of their several kinds and qualities, and that all of said work shall be performed in a thorough and workmanlike manner, and that all of said work, labor and materials shall be subjected to the inspection and approval of the city civil engineer; and in case any of such material and work shall be rejected by the said engineer, as defective or unsuitable, then the said material shall be removed and replaced with other materials, and the said work shall be taken down and done anew, to the satisfaction and approval of the said city engineer, at the cost and expense of the said party of the second part.”
    The terms of the contract as to work and material were not complied with, and the repeated protest of the civil engineer, and his orders that portions of the pavement should be taken up and relaid, were disregarded. The agents of the company, after laying one hundred feet of the pavement, informed the civil engineer and city council that the company did not intend to construct the pavement in accordance with the terms, conditions or specifications of the contract; and, with respect to that part of the work, it is' alleged that the pavement was ‘ ‘ comparatively worthless.” It is also alleged that at this point the committee on streets- entered into a parol contract with the company for the construction, by the company, of a pavement of an entirely different character, and of greatly inferior quality to the one contracted for originally; and that, under this agreement, two thousand feet of pavement have been constructed, the same being “greatly inferior to and in no wise corresponding with the one contracted for by the said city council.” Against all this action, the plaintiff and those for whom he sues have repeatedly protested to the company and the city council. No part of the remaining portion of the work has been completed.
    The plaintiff further avers that the clerk of the city has certified the assessment to the county auditor, who has placed the same on the tax duplicate for collection by the defendant in the usual mode. The plaintiff and those in interest with him are ready to pay, and have tendered all taxes due on their lots, but they are unwilling to pay this assessment or any part of it. They, therefore, pray that the defendant, as treasurer, may be restrained from proceeding to collect the assessment.
    
      Hall c& Waters, E. W. Stuart and W. W. Boynton, for plaintiff in error.
    
      
      C. 8. Cobbs and E. P. Green, for defendant in error.
   Okey, C. J.

Admitting that the plaintiff was not without a remedy, the defendant insists that relief should have been sought by requesting the city solicitor to bring suit (R. S. § 1777), and that on his failure to comply with the request, there would have been a right of action at the suit of the plaintiff. R. S. § 1778. But these sections have no application. Section 550, of the municipal code of 1869, as aineuded in the revision (R. S. § 2289), provides that in an action by the city (R. S. §§ 2286, 2294, 2303), to enforce an assessment, “ a substantial defect in the construction of the improvement shall be a complete defense.” Doubtless the same rule would apply in a suit by the treasurer to collect the assessment. 77 Ohio L. 13; R. S. §§ 1102, 1103. But a treasurer may collect taxes or assessments by distraining goods and chattels (R. S. § 1095), or he may sell the lands upon which taxes or assessments have been levied, the duplicate having the force of an execution. (R. S. § 2870); and the latter, it is fair to say from the averments of this petition, was the mode intended to be pursued by this defendant. Where the proceeding is by distraint, or the treasurer is proceeding to sell under the authority conferred by the duplicate, the provision of section 2289, above quoted, will' not in terms apply; but by confining it to actions brought by the city or the treasurer, we would place upon the provision a construction which is wholly unwarranted. Such a construction would enable the city and treasurer to render the provision wholly nugatory. We are satisfied that whether a question alises upon that provision at law or in equity, the rule ought to be the same (31 Ohio St. 450), and that where the treasurer, as here, is enforcing an assessment of the character claimed, without suit, he may be restrained. True, it is a well known maxim, that he who seeks equity must do equity, but wTe are unable to say, looking to the averments of this petition, and giving to them the liberal construction required (R. S. §5096), that relief should be denied by the application of that rule.

It is urged that the improvement contemplated in the proceedings of council, and contracted for between the city and the company, was entirely abandoned, and, hence, that the assessment is illegal and may be enjoined. R. S. pt. 3, tit. 1, div. 7, cli. 13. No doubt an assessment not based on proper preliminary steps is illegal. R. S. § 2261 et seq.; Folz v. Cincinnati, 2 Handy, 261. And where proceedings for an improvement are abandoned, and a contract for a new and wholly different improvement is substituted for the former contract, without the proper preliminai-y steps, an assessment against abutting lots, to pay the cost of such new improvement, would be equally illegal. "Whether the petition presents such a case, we need not now determine.

We are of opinion that the petition is sufficient, and that the district court erred in sustaining a demurrer to it, and in dismissing the action. The treasurer was a necessary party, and, as to him, a cause of action was stated. But we are also of opinion that it is the duty of the court to require the city to be made a party, and that a failure to comply with such order would be ground for dismissing the action. R. S. §§ 5013, 5311. The ground upon which we reverse the judgment does not relate to the legality of the assessment. We assume for this purpose that it was not illegal. The question finally to be determined on this branch of the case is whether there was such a departure from the contract in the performance of the work, as to afford ground of relief against the enforcement of the assessment, and upon that question the city is plainly interested and should be heard.

We purposely abstain from laying down any rule by which to determine what is a “substantial defect” within the meaning of section 2289, or what will constitute an abandonment of the preliminary steps and the contract for the construction of the work, and the substitution of a new contract. These matters can be more properly considered in a case like this, when all the facts are ascertained.

Judgment reversed.  