
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, J.T.
    HOLMES adm., v. VILLAGE OF AVONDALE.
    
      Burns Law — Application to street improvements—
    The action of council of a village for a street improvement under the act of April 15, 1890 (87 O. L. 201) one half the cost to be paid by the village, is subject to the general provisions of the Burns law (sec. 2702JEtev. Stat.), and a contract entered into for the improvement of a street without certificate of the Clerk being secured that the money is in the treasury, is void, and the contractor can not be held to such contract.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

This case is here on error to the Court of Common Pleas. The action^in that court wa§ on a bond to recover for the failure of Holmes to enter into a contract to construct a street in the village of Avondale, the construction of which street was authorized by an act of the legislature of the state of Ohio, passed April 15, 1890, (87 O. L. p. 201.) Holmes was a bidder to do the work, and gave bond that if the contract was awarded to him that he would give bond to complete the work in accordance with his contract. The contract was awarded to him, and he was notified, but failed to enter into the contract to do the work and give, bond for its performance. A contract was made with other parties at a higher figure, and this action was prosecuted to recover damages for his failure to perform the contract. The Court of Common Pleas awarded damages in favor of the Village against Holmes and his bondsmen. This action is prosecuted to reverse that judgment.

The act under which the improvement was made provided that the village should pay one-half of the cost, and the abutting property owners the other half — the latter to pay their half in annual installments. The village was authorized to issue bonds. "

The main question in the case depends upon whether section 2702 Rev. Stat. applies. The evidence clearly shows that the money required to pay the Holmes contract was not in the treasury of the village, and there was no certificate of the clerk that it was. No attempt was made to comply with such section, the claim being that said section had no application to this improvement.

«. We think it must be conceded that if this section applies, and it not having been complied with and any contract that might have been made in disregard of this section being void, that neither party would be liable in damages’ for not entering into a void contract.

Does this section apply? We think it does.

The language of the section is that “No contract,agreement or other obligation, involving the expenditure of money, shall be entered into * * * unless * * the clerk thereof shall first certify that the money required for the contract * * is in the treasury * * This is broad, clear and exact, and it must apply to every contract made by a village, unless there is some exception contained in the statute creating the right to contract (either clearly expressed or necessarily implied) under other grants of power. Certain exceptions are made, in this section in express terms as to cities of the second grade of the first class, as to contracts for improvements similar to the one here under consideration; but there is no exception in the general law which excepts this village from its operation, and we see nothing in the law of 1890 supra, which in the least shows that in the entering into contracts for the improvement, section 2702 Rev. Stat was not intended to apply. Nor .do we see anything in reason why it should not apply as well to contracts made under this act as to any other contract of a like nature.

L. W. Goss, for Plaintiff in error.

A. B. Huston and John W. Warrington, for [the Village.

This is in accord with the decision of this court, in the case of Reig & Martin v. The Village of St. Bernard (not reported), and which decision was affirmed by the Supreme Court of Ohio without report. It is also in accord with the case of Bond v. Madisonville, 2 C. C. 449, and Drott v. Riverside, 4 C. C. 312

The judgment of the Court of Common Pleas will therefore be reversed, and the cause remanded for further proceedings.  