
    Philip Welker v. The City of Toledo.
    1. Contracts by a city council to the effect that the stipulated price of workto be performed in the improvement of streets, etc., shall be paid for by assessing the amount upon the abutting lots, and assigning the assessment to the contractor, without recourse by him upon the city for any excess of the assessment above fifty per centum upon each lot, the maximum allowed by statute (vol. 63, p. 22, sec. 2), are an evasion of that statute, and in violation of the rights of lot-owners not so over-assessed; the effect of such contracts being to swell and render nominal the price of the work, and thus to cast upon such owners a burden which the statute declares shall fall upon the city.
    2. In such cases, however, the contractor himself can not, in violation of his-own contract, recover the excess from the city.
    ^Motion for leave to file petition in error to reverse the judg- [453 ment of the district court of Lucas county.
    By the act of February 21, 1866 (63 Ohio L. 22, sec. 2), assessments for the improvement of streets, etc., are limited to a maximum of fifty per cent, on the valuation of the respective lots- and lands assessed. The act also provides that when the cost of the improvement exceeds that rate upon any lot or land assessed-: for its payment, the excess above fifty per cent, shall be paid by the -city or village out of its general fund.
    After the taking effect of this act, Welker entered into a contract with the city council of Toledo to make certain improvements upon "the streets of the city, conformably to an ordinance theretofore passed for the purpose. By this contract, Welker was to do the work at specified prices, and the city council were to assess the aggregate amount upon the abutting lots, and assign the assessment to him, in full payment for the work. The contract contained an ■express stipulation, that if any of the lots should prove to be asisesscd beyond the maximum allowed by law, fifty per cent, on the valuation, no recourse should be had upon the city for the excess •over fifty per cent., Welker agreeing to take and collect the assessment at his own risk. Two of the lots proved to be assessed beyond this limit, to the amount of $560.90. After completing the work, and collecting the remainder of the assessment, Welker brought his action against the city to recover this sum of $560.90. The common pleas held that he was not entitled to recover, and the ■district court affirmed the judgment. And now Welker asks leave to file his petition in error here, to reverse the judgment of affirm.anee.
    
      Bissell & Gorrill, for the motion
    1. The clause in the contract that no recourse should be had ■upon the city for any deficiency that might arise in case the assessment should exceed fifty per centum of the value of the property, is meaningless, and amounts to nothing. Under the law, an accurate and valid assessment can not exceed fifty per centum of such ■value.
    454] *2. If it be held that the clause has meaning, then the city ■can not hold Welker to such obligation, because the city paid him no consideration therefor.
    3. To permit the city to interpose this clause in the contract as -a defense, is against public policy, and ought not to be allowed.
    4. This illegal clause in the contract may be rejected, leaving the remainder to stand. Welker is not trying to enforce this clause. The court should not aid the city to do so.
    5. 1‘f the clause is held to be valid, bidders will add to the cost -of the work, and a fair profit, any deficiency likely to result from Ttke cause referred to, and will make the gross sum the price at which, he will offer to do the work; and the owners of the valuable ■lots, in addition to paying the share chargeable against the general fund, must pay this additional burden imposed through the contractor’s desire to save himself from loss.
    6. It will not do to say that this is a controversy between the contractor and.the city, and that the lot-owners can take care of •themselves. A decision in favor of the city decides that, as regards the contractor, the council may make an assessment which the law •decides they shall not make. Once concede this power, as regards the contractor, and the lot-owner can not protect his interests. In not one case in a thousand could he prove that the contractor had figured in this way; that this clause of the contract had produced this, its legitimate result.
    
      B. W. Rouse, city solicitor, contra:
    1. If Welker has any cause of action, it arises solely from his written contract, or from a breach of it by the city.
    2. By the contract, he agrees to take what he can legally get from the lot, and to deduct the excess over fifty per cent, from the amount of his claim — that he would lose that himself, and not call upon the •city for Tfc.
    3. In this, there is nothing illegal or contrary to public policy.
   *Welch, J.

We do not see any just ground upon which [455 the action can be sustained. It was an action in violation of the plaintiff’s express written contract. He bound himself in writing never to bring the action. He entered into the contract with his eyes open. He must be presumed to have known the law of assessments, and he was bound to know the facts in relation to the value of the lots, the cost of the work, and the language of the contract. He alleges no fraud, and he admits that he received the full consideration agreed upon by the parties, viz : the prices named, less the uncollectable excess. It is quite true, as counsel have argued, that contracts of this character are in violation and evasion of the statute, which requires such excesses of assessment to be paid out of the general fund of the city. The manifest effect of such contracts is to swell and render merely nominal the prices at which the work is let, and thus to cast upon lots not so over-assessed a burden which the statute declares shall fall upon the city. Such contracts are against the policy of the statute, and not to be tolerated to the injury of third persons aggrieved thereby. But it by no means-follows that a party to such a contract can recover, for work done ■under it, a compensation beyond the amount stipulated for in the contract. He can not enforce it in part, and avoid it in part. It. is not for him to set up its illegality, while he claims to recover for work done under it. Such is the position of the plaintiff here 'r and we think the district and common pleas courts were right in. denying him his action.

Motion overruled.

Day, C. J., and Brinkerhoff, Scott, and White, JJ., concurred.  