
    Fred W. Hays, Plff. in Err., v. City of Oil City.
    Points of law may be reserved on the whole evidence, without a finding of facts by the jury or agreement as to the facts.
    The preparation of a code of laws, and ordinances of the city of Oil City, by the city solicitor, under a resolution of councils, is incidental to his office, under the provision of the city charter that “he shall do all and every professional act incident to the office, which may be required of him by the mayor . . . or by resolution of the said councils;” and hence he cannot recover compensation for such service, in addition to his salary.
    (Argued October 6, 1887.
    Decided October 25, 1887.)
    October Term, 1887,
    No. 169, W. D.
    Error to tbe Common Pleas of Venango County to review a judgment in favor of defendant in an action to recover for services rendered.
    Affirmed.
    The facts of the case as they appeared at the trial, and the course of procedure adopted, together with the questions presented, appear from the following opinion of the court below,. Taylojb, P. J., on the reserved questions of law:
    “This is an action of assumpsit brought by the plaintiff,, claiming to recover the value of certain services rendered to the defendant.
    “E. W. Hays, Esq., was the regularly constituted solicitor for the city. A short time prior to the adoption by the city of the act approved May 23, 1871, and its supplements, to wit, January 25, 1881, the question of having digested that portion of the act pertaining to the city was discussed by members of the council when in session, and with individual members outside the council chamber. When the plaintiff was referred to he informed them that he considered such services as being outside of bis duties as tbe city solicitor; and, to- tbe individual members, at last, be told tbat for sucb services, if performed by bim, be should expect to receive extra compensation therefor. At a meeting of tbe common council, held April 5, 1881, a resolution was passed as follows: ‘Resolved. Tbat tbe city attorney is hereby requested to make up a digest, or pandect, of tbe “Wallace Act,55 appertaining to cities of tbe fifth class, for tbe use of tbe city councils.5 Carried.
    
      Note. — Tor the reservation of questions of law in the trial of a case, see note to MeCallin v. Herzer, 4 Sad. Rep. 64.
    Public officers cannot recover additional compensation for services rendered, which are within the scope of their official duties, and a contract to so pay cannot be enforced. Lancaster County v. Tulton, 128 Pa. 48, 5 L. R. A. 436, 18 Atl. 384; Rothrock v. School Dist. 133 Pa. 487, 19 Atl. 483. But he may recover for services performed not imposed upon him by virtue of his office. Re Jenkins Twp. 1 ICulp, 111. Or for services rendered after the expiration of his official term upon proof of a new engagement. Tulton v. Lancaster County, 162 Pa. 294, 29 Atl. 763.
    
      “This resolution was passed by tbe select council. At this meeting of councils some members testify tbat tbe question of extra compensation for tbe work was talked of; while others, one of tbe movers of tire resolution indicated, beard nothing regarding compensation. It may be fairly gathered from all tbe testimony that no amount was agreed upon, nor was there any official action tbat an extra compensation should be paid. More than a year after tbe passage of this resolution another was passed authorizing the publication, etc., of tbe ordinances. Tbe work was completed by Mr. Hays. Tbe acts of assembly and the ordinances were published in a volume, which was offered and accepted by tbe councils. If I remember correctly no demand was made for payment for about two years after tbe completion of tbe work; and when made, tbe authorities declined to pay, alleging that there was no consent to pay, and that tbe services rendered were within tbe line of bis duties as counsel for tbe city, and tbat be bad been paid for sucb services by tbe payment of his annual salary.
    “Upon tbe trial it was conceded tbat the value of tbe services for which tbe plaintiff was entitled to recover, if at all, was $250, with interest. Tbe jury was instructed to find a verdict for tbe plaintiff for tbe amount, subject to tbe questions of law reserved, viz.: 1, Whether there is sufficient evidence of a contract to impose a liability npon tbe municipality; 2, whether a party could recover for services like those proved, upon a quantum meruit against a municipality; 8, whether tbe services performed were, under the law defining tbe duties of tbe city solicitor, outside tbe line of sucb duties.
    “If tbe court should be of the opinion tbat all of these propositions should be affirmed, then judgment for tbe plaintiff upon tbe verdict. But if tbe court should be of tbe opinion that any one of them was against tbe plaintiff, then judgment for the defendant, non obstante veredicto.
    
    
      ‘‘The first and second propositions we may rule for the plaintiff without comment, but the third requires more careful consideration.
    “The relation sustained by the plaintiff to the city, and his duties, are defined in § 48 of the charter, which provides for his election, his title, etc. And the seventh clause provides ‘that the city solicitor shall receive a fixed annual salary; and all fees received by him in his official capacity shall be paid into the city treasury, monthly, as hereinbefore provided.’
    “There are seven clauses defining his duties, but the third is the most important in this investigation. It provides: ‘He shall prepare all bonds, obligations, contracts, leases, conveyances, and assurances which may be required of him by any ordinance of the corporation of the city (to), commence and' prosecute all and every suit and suits, action and actions, brought and to be brought by the corporation, for or on account of any of the estate, rights, trusts, privileges, claims, or demands of the same, as well as to defend all actions or suits brought or to be brought against the said corporation, or any officer thereof, within or whereby any of the estates, rights, privileges, trusts, ordinances, or acts of the corporation, or any branch thereof, may be brought in question before any court in this commonwealth; and shall do all and every professional act incident to the office, which may be required of him by the mayor of said city, or by any committee of the select or common council, or by any ordinance or resolution of the said councils or either of them.’
    “That the city solicitor is an officer of the corporation will not be questioned. In Accommodation Loan & Sav. Fund Asso. v. Stonemetz, 29 Pa. 534, and Kilpatrick v. Penrose Ferry Bridge Co. 49 Pa. 118, 88 Am. Dec. 497, it is ruled ‘that corporations are not liable on a quantum meruit, for services performed by their officers; there must be an express contract for compensation or there can be no recovery.’
    “This rule is somewhat modified in Chester County v. Barber, 97 Pa. 455. Barber was counsel for the commissioners; and with reference to his right to recover the court says: ‘Whether the plaintiff, Barber, can recover anything will depend upon the terms of his previous engagement as solicitor to the commissioners.’
    “In my opinion the principle which should apply to the con-sanction of the contract between the plaintiff and the city, as its solicitor, as found in the third clause before recited, is laid down by Dillon on Municipal Corporations, vol. 1, § Hi 2, p. 290, as follows: ‘It is a well-settled rule that a person accepting a public office, with a fixed salary, is bound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case that by subsequent statutes or ordinances, his duties within the scope of the charter powers pertaining to the office are increased, and not his salary. Whenever he considers the compensation inadequate, he is at liberty to resign. The rule is of importance to the public. To allow changes and additions in the duties properly belonging, or which may properly be attached, to an office, to lay the foundation for extra compensation, would introduce intolerable mischief. The rule, too, should be rigidly enforced. The statutes of the legislature and the ordinances of our municipal corporations seldom prescribe with much detail and particularity the duties annexed to public offices; and it requires but little ingenuity to run nice distinctions between what duties may and what may not be considered strictly official; and if these distinctions are much favored by courts of justice, it may lead to great abuse.’
    “The charter becomes the contract between the plaintiff and the city. There are six clauses therein defining his duties. The third clause, before recited, in connection with the others, would seem to have been intended to cover every possible contingency wherein the professional services of a solicitor could be required. After setting forth many items specifically, as if to cut off the controversy, it closes with this broad and sweeping assertion: ‘And shall do all and every professional act incident to the office, which may be required of him by the mayor of the said city, or by any committee of the select or common council, or by any ordinance or resolution of the said councils or either of them.’
    “Some light is thrown upon how the council regarded the services called for by the resolution, from the fact that at the same meeting resolutions -were offered fixing the salary of the solicitor, both of which were negotiated, while this resolution itself and the acts of councils were entirely silent as to compensation. Lawyers may, and possibly do, honestly differ as to whether the services performed, and here claimed for, were strictly incident to the office.
    “It was most certainly the professional labor of an attorney. It strictly pertained to the lawful administration of the government of the municipality; and it was needed by the council in the performance of their official duties.
    “Applying now the rule laid down by Dillon, before recited, that 'nice distinctions between what duties may and what may not be considered strictly official should meet with little favor by the courts,’ and that this rule should be rigidly enforced (although it may make a seeming hardship in particular cases), yet it is a salutary rule, to be enforced for the public benefit.
    “For the reasons given I am of the opinion that judgment .should be entered for the defendant, non obstante veredicto, upon the reserved questions.”
    The plaintiff claimed that he was entitled to judgment, on the verdict in his favor, for $268.75, and excepted on the grounds: 1st, because of the irregularity of the reserved points of law without any finding or agreement as to the facts; and 2d, on the merits of the plaintiff’s claim — it being for services rendered clearly not incident to the duties of the office of city solicitor, and not included in the duties which are specifically set out in clause 3, § 40, of said act.
    
      William McNair, for plaintiff' in error.
    The rule of law that there must be a finding of the jury or agreement as to the facts before a judgment non obstante veredicto will be sustained is well settled; and the authorities are numerous and uniform as to that point.
    “The facts upon which the questions arise should be found by the jury or agreed upon by the parties, and should be distinctly stated, as well as the questions raised upon them.” Bobinson v. Myers, 67 Pa. 18;
    The facts must appear upon the record, by the verdict or agreement; the judge cannot himself draw conclusions of fact from the evidence. Com. use of Dimes Sav. Fund v. McDowell, 86 Pa. 379; Irwin v. Wickersham, 25 Pa. 316; Winchester v. Bennett, 54 Pa. 510; Patton v. Pittsburgh, C. & St. L. B. Co. 96 Pa. 169; Inquirer Printing & Pub. Co. v. Bice, 106 Pa. 623; Buckley v. Duff, 111 Pa. 227, 3 Atl. 823; Central Bank v. Earley, 113 Pa. 477, 6 Atl. 236.
    
      The omission is not cured by a statement in the opinion of the court filed afterward on entering judgment. Buckley v. Duff, 111 Pa. 227, 3 Atl. 823.
    In this case judgment should be entered for the plaintiff on the verdict as in Smith v. Arsenal Bank, 104 Pa. 521: “We-have, therefore, the verdict of the jury in favor of the plaintiff below, with nothing on the record that would justify us in disturbing it.”
    It does not seem reasonable, or good common sense, that such a special service as that in question here, equal in value to nearly his annual salary, should be imposed upon the solicitor; and it cannot be done without putting a strained construction on the words “incident to the office.” See Pardee’s Appeal, 100 Pa. 412.
    The service was not within the solicitor’s prescribed duties, and the employment was within the general powers of the city. Williamsport v. Com. 84 Pa. 501, 24 Am. Rep. 208; Chester County v. Barber, 97 Pa. 463.
    “Municipal corporations are subject to be sued upon contracts. . . . within the scope of the chartered powers of the corporation, and duly made by the proper officers or agents,— they are liable in the same manner and to the same extent as private corporations or natural persons.” Dill. Mun. Corp. §. 749.
    The present state of the authorities clearly justifies the opinion of Chancellor Kent that corporations may be bound by implied contracts within the scope of their powers, to be deduced by inference from authorized corporate acts, without either a note, or deed, or writing. This doctrine is applicable equally to public and private corporations. Id. § 383.
    
      Ash & Carey, for defendant in error.
    A person accepting a public office, with a fixed salary, is bound to perform the duties of the office for the salary. 1 Dill. Mun. Corp. §§ 172, 173, p. 290; Carr v. Chartiers Coal Co. 25 Pa. 337.
    The city solicitor is a public officer. See act of May 23, 1874, § 40, defining his duties, and Evans v. Com. 74 Pa. 124.
    Corporations are not liable on a quantum meruit for services performed by their officers; there must be an express contract for compensation, or there can be no recovery. Kilkpatrick v. Penrose Kerry Bridge Co. 49 Pa. 118, 88 Am. Dee. 497; Accoinmodation Loan & Sav. Fund Asso. v. Stonemetz, 29 Pa. 534; Chester County v. Barber, 97 Pa. 455; Lehigh County v. Kleckner, 5 Watts & S. 185; Salsbury v. Philadelphia, 44 Pa. 303; Addis v. Pittsburgh, 85 Pa. 379; Field v. Union Box Co. 2 W. N. C. 426; 1 Dill. Mun. Oorp. §§ 172, 173, and notes.
   Per Curiam:

We cannot sustain the exception to the reserved points in this ease, since they were reserved on the whole evidence. A finding of facts by the jury would have been to no purpose, as they could not find contrary to the evidence; and a finding in accordance with it would have been a mere restatement of the testimony.

As to the remaining exception we have only to say that the learned and able opinion of the president judge so clearly and fully justifies his judgment as to leave us nothing to do but to concur in it.

The judgment is affirmed.  