THE ATLANTIC REPORTER VOLUME 109 POWELL v. POWELL. (Court of Chancery of Delaware. Feb. 20, 1920.) 1. JUDGMENT 948(1⁄2)—AFFIDAVIT IN RE SPONSE TO RULE TO SHOW CAUSE WHY PRE- denial by complainant of a settlement and release by her, which was referred to in defendant's affidavit on rule to show cause why preliminary injunction should not be awarded. Action by Mary A. Powell against Alfred M. Powell. On rule to show cause why a preliminary injunction should not be issued to restrain defendant from conveying certain Rule real estate pending a final hearing. discharged, and restraining order dissolved. James H. Hughes and John D. Hawkins, both of Dover, for complainant. Arley B. Magee, of Dover, for defendant. In wife's suit to recover from her husband moneys belonging to her, where, on rule to show cause why preliminary injunction should not be issued to restrain him from conveying real estate pending a final hearing, defendant filed an affidavit to which was annexed a copy of the record of complainant's divorce suit, petition in which alleged that defendant had minTHE CHANCELLOR. On December 18, gled complainant's property with his, and pray- 1919, the complainant's bill was filed to reed for a share of defendant's real and personal estate, the argument by defendant's solicitor of cover back from her husband, the defendant, res judicata had the effect of turning defend-moneys belonging to her, being the proceeds ant's affidavit into a plea. 2. JUDGMENT 585(1)—To SUPPORT PLEA OF RES JUDICATA SAME QUESTION MUST HAVE Action is not barred by prior suit, unless it be shown, either by the record or by extrinsic evidence, that the same question was necessarily raised and determined in the former suit. 3. JUDGMENT 585(2) of sale by him of property belonging to her. In 1904, while living as husband and wife with the defendant, the complainant was arrested and since then has been in jail serving a sentence of imprisonment for life. She alleges that he owns real estate in Dover bought with her money, and that he has refused to account to her; that she had obtained a decree nisi in a suit for divorce from JUDGMENT IN DI- him, and feared that he would dispose of his real estate to defeat the recovery by her of the money due her. It was also alleged that the complainant had paid premiums on a policy of insurance on her life, and that he refused to give her possession thereof. The prayers were for an account and injunction to restrain a conveyance by him of the real estate pending the hearing of the cause. VORCE ORDERING PAYMENT TO WIFE BAR TO In view of Rev. Code, 1915, §§ 3018, 3019, as to allowance to wife in divorce for husband's fault, decree in wife's divorce action, simply ordering husband to pay wife a certain sum without stating details, held a bar to the wife's suit against husband to recover her moneys held by him. 4. INJUNCTION 137(3)-IN VIEW OF PLAIN- ENJOIN DEFENDANT FROM DISPOSING OF HIS In wife's suit to recover from her divorced husband moneys belonging to her, it was within the court's discretion to deny her prayer for injunction to restrain conveyance by defendant of his real estate pending the hearing of the cause, where her demands were very stale, and might have been enforced at any time during the 15 years preceding suit, and there was no A rule for a preliminary injunction was granted, and the defendant was restrained pending the hearing of the rule. [1] At the hearing of the rule on February 5, 1920, no evidence was offered by the complainant, except an affidavit made by herself. The defendant had filed on January 6 an affidavit made by him denying the allegations of the bill, alleging a settlement on February 14, 1904, with the complainant, and the giving by her of a release to him, which release had been stolen from the defendant For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in 1918 and was not produced. A copy of reasonable. By paragraph 3019 the allowthe record of the suit of the complainant ance, or division, may be by a gross sum, or for a divorce was annexed to the affidavit of an annual allowance, or an assignment by the defendant, and by it it appeared that metes and bounds. The provision in parain the petition the complainant alleged that graph 3018 first appeared in its present form her husband had taken her property, mixed in the Revised Code of 1852. The first legisit with his own, owned real estate and other lation on the subject was in the act passed property bought in a great measure by her February 3, 1832, giving to the Superior money, and which was of right her property. Court jurisdiction of divorces. 8 Del. Laws, In addition to praying for a divorce for c. 144, p. 148. Section 5 thereof is substanadultery she prayed that she be allowed out tially the same as the present statute, and of her husband's real and personal estate is as follows: such share as the court shall deem reasonable. "That when a divorce shall be decreed in the case of the aggression of the husband, the woman shall be restored to all her lands and tenements, and be allowed out of the husband's real and personal estate, such share as the court shall think reasonable, having regard to the marriage, and his estate at the time of the the personal property that came to him by divorce." A decree nisi was entered in her favor on December 16, 1918. On December 3, 1919, a rule on the defendant to show cause why the complainant should not have the allow ance prayed for from her husband's property was heard by the Superior Court, the complainant and defendant being present and represented by counsel, and in the final deIn 1832, and also in 1852, the rights of a cree made on December 17, 1919, the day aft- husband over his wife's estate were at comer this bill was filed in this court, the Sumon law and unaffected by the statute. perior Court simply ordered the defendant | When those acts were passed it was not apto pay to the complainant five hundred dol-propriate to provide for a restoration to the lars without stating any details. woman of her personal property, for if he had taken it it was his absolutely, and so allowances to her were made from his estate. But in these latter days when the fullest power has been given to a married woman over her own property, it seems odd that the statute should not have been changed so as to restore to her any of her property which he may have taken and held from her. The answer to the question is, that when granted a divorce she could by proceedings at law enforce her rights, and during coverture enforce them in chancery. It was argued by the solicitor for the defendant that the main subject matter of the bill had been adjudicated in the Superior Court, and that that judgment was a bar to the maintenance of the cause in this court, all of the requisite conditions being present, viz.: Identity (1) of the thing sued for; (2) of the cause of action; (3) the persons and parties to the action; and (4) of the quality of the persons for and against whom the claim is made. This is turning an affidavit into a plea, but for the purposes of the rule this does not matter. Sill v. Kentucky, etc., Co., 11 Del. Ch. 93, 97 Atl. 617. The four conditions are present, as to the claim of the complainant against the defendant set up in the bill except as to the policy of insurance on her life. But the complainant's solicitor urges that the Superior Court did not have jurisdiction to restore to her her personal In Kingsberry v. Kingsberry, 3 Har. 8 property, and that the award of five hundred (1839), the court not only restored to the dollars to her must necessarily have been in- wife, the petitioner, her lands, but also "ditended as an allowance to her from his prop-rected the transfer to her of certain securierty, and that he must still account to her ties that belonged to her before the marfor her property. [2] To be a second suit it must be shown either by the record, or by extrinsic evidence, that the same question was necessarily raised and determined in the former suit. Russell v. Place, 94 U. S. 606, 24 L. Ed. 214; Hudson v. Layton et al., 107 Atl. 785. [3] Does it so appear here from the record? The answer to this depends on a consideration of the statute. By paragraph 3018, p. 1416, of the Revised Code, for the aggression of the husband the wife shall be restored to all her real estate and be allowed out of her husband's real and personal estate such share as the court shall think Had the Superior Court jurisdiction to require the defendant to pay to his wife in money an equivalent for the property belonging to her which she alleges he took and holds? After an examination of the decisions of the state, I find only one case bearing on the subject. riage, and the restoration of a servant boy; and allowed to her out of her husband's estate the sum of one thousand dollars." The report does not state more than the form of relief, as above stated. At this time the act of 1832 had not been changed. Quære. Does that make a difference? This case was under the act of 1832. But I do not see that the words underscored in the above quotation of that act makes that act as applied to this case different from the present act. There was an order restoring to the wife her own personal property, consisting of securities, and a slave. That case cited does justify the conclusion that the Superior (109 A.) Court had power to allow the complainant | town by vote agree upon details of its contract, from her husband's estate the money which but it may do this through agents. she claims in this court. It also appears from the record of the case in the Superior Court that the questions here raised were necessarily raised and decided there. It follows that the sum of five hundred dollars was an adjudication in favor of the complainant of what she here demands, and when properly pleaded will be a bar to a further presentation of this suit, except as to the insurance policy. Where light company's charter limited the right of a town contracting with the company to contract only by the town's selectmen, a contract not merely executed, but also negotiated by a committee of persons not selectmen, was not binding on the town, although, if the town had made the contract and settled its terms by vote, such a committee could have been appointThe questions here discussed were raiseded as a mere committee to execute the contract. on a rule to show cause why a preliminary injunction should not be awarded, and that 4. STATUTES 2252 also involves a continuance of the restraining order. [4] It further appears that the demands are very stale and might have been enforced at any time during the last fifteen years. Also there is no denial of the settlement and release referred to in the affidavit of the defendant. For all of these reasons the discretion of the court to grant or continue injunctive relief is not moved to assist the complainant further, and the rule will be discharged and the restraining order dissolved. The questions of law raised are discussed more fully than is usual at such preliminary hearings, but it seemed best to do so in this case in denying the relief, and an expression of my views may assist an amicable settle ment of the differences between the parties without prolonging the litigation. The rule will be discharged and the restraining order dissolved. VAN BUREN LIGHT & POWER CO. v. (Supreme Judicial Court of Maine. Feb. 19, 1920.) 1. TOWNS 38-UNDER STATUTE AUTHORIZ- Although special act chartering a light company authorized certain towns to contract with it "by their selectmen," one of such towns could by vote settle all the terms and conditions of the contract, and in such case might employ any hand to execute it, appointing for such purpose a committee composed of others than the selectmen, 2. TOWNS 38-MAY INTRUST NEGOTIATION AND AGREEMENT AS TO DETAIL OF CONTRACT TO AGENTS. Negotiating and agreeing upon a contract being not a governmental, but a delegable administrative, function, it is not necessary that a LATER SPECIAL ACT CONTROLS EARLIER GENERAL ACT. A light company's charter by Priv. & Sp. Laws 1909, c. 88, § 5, permitting certain towns to contract with the company "by their selectmen," controls, as the later and more specific expression of the legislative will, the general statute (Rev. St. 1903, c. 4, § 76) authorizing municipalities to contract, and containing no limitation or direction as to the agency through which they may act. 5. Towns 39(2) ARTICLE TO TRANSACT ALL OTHER BUSINESS IN WARRANT FOR TOWN At an annual town meeting held subsequently to the execution of an unauthorized charter with light company, in the warrant for the meeting an article "to transact all other business" was insufficient to support a note of ratification of such contract. 6. ASSUMPSIT, ACTION OF 6(2)-CoVENANT, ACTION OF 1-DEBT, ACTION OF 1- For breach of a contract executed under the seals of both parties thereto only an action of debt or covenant will lie, and an action of assumpsit cannot be maintained thereon. 7. MUNICIPAL CORPORATIONS 249-MAY BE LIABLE ON IMPLIED CONTRACT. A municipal corporation may be held liable on an implied contract without a vote, deed, or writing expressly binding it. ed to, no implied contract can be raised; the rule being that a corporation, like an individual, is liable upon a quantum meruit when it has enjoyed the benefit of work performed or goods purchased, when no statute forbids or limits its power to make a contract therefor. 10. JUDGMENT 713(2)-CONCLUSIVE AS TO MATTERS ADJUDICATED OR THAT MIGHT HAVE BEEN ADJUDICATED. In any suit at law or in equity a judgment by a court of competent jurisdiction in a prior action between the same parties or their privies for the same cause of action is, conceding regularity and absence of fraud, conclusive as to all issues actually tried or that might have been tried therein; and, if for a different cause of action, it is conclusive as to matters actually litigated. 11. JUDGMENT 590(2) "Said corporation is hereby authorized to make contracts with the towns of Van Buren and Hamlin, relative to lighting the streets of said towns and for other public purposes, corporation or corporations and individuals, * and said towns and said corporations and individuals are hereby authorized to enter into such contracts with the Van Buren Light & Power Company, the towns by their selectmen, and other corporations by their president and directors, or other officers." At a town meeting held on June 9, 1911, it was voted to authorize the selectmen to contract with the company. A part of the selectmen were stockholders. For this reason the vote of June 9th was afterward rescinded. No rights are claimed under the vote ACTION AGAINST passed at this meeting. TOWN FOR LIGHT BARRED BY JUDGMENT IN Action against town for light furnished by plaintiff light company held barred as to light furnished between certain named dates by prior actions between the parties for light furnished Another town meeting was held on July 19, 1911. It is not questioned that this meeting was duly called by a warrant containing appropriate articles, or that a quorum of voters was present. At this meeting it was voted "to contract with the Van Buren Light & Power Company for lighting the streets of 12. TOWNS 40-No IMPLIED PROMISE TO said town of Van Buren village," and voted between such dates. PAY FOR LIGHT FURNISHED. Defendant town was not liable for light furnished by plaintiff light company after March, 1916, where before that time the town had for nearly a year refused payment, for about five months, to wit, from June to November, the current had been shut off, and the streets after December, 1915, were lighted by another electric plant; for there could be no implied promise to pay for the duplicate lighting system maintained by plaintiff evidently without the request or consent of the town of ficers. "to choose a committee of three on behalf and as agents of said town of Van Buren to contract with the Van Buren Light & Power Company for lighting the streets of said Van Buren village." At the same meeting Fred J. Patent, Auguste Violette, and O'Neil Levasseur were chosen as a committee to make the contract. The committee thus chosen entered into a 15-year contract with the company, which is the contract in suit. The case shows that, in pursuance of the contract, the company in Exceptions from Supreme Judicial Court, stalled its plant, furnished light as required Aroostook County. Action of assumpsit by the Van Buren Light & Power Company against the Inhabitants of Van Buren. On exceptions to rulings of the presiding justice directing a verdict for defendant. Exceptions overruled. See, also, 116 Me. 119, 100 Atl. 371. Argued before CORNISH, C. J., and HANSON, DUNN, WILSON, and DEASY, JJ. by the contract, and down to April 1, 1915, was paid the stipulated compensation, but that since that date while the company has supplied light as set forth in the account annexed, nothing has been paid. The declaration contains a count on the contract entered into by the committee and an account annexed for lights and small items supplied between April and June, 1915, and between November, 1915, and April, 1917. It also contains common counts. Shaw & Thornton, of Houlton, for plain- Liability on Express Contract. tiff. George J. Keegan, of Van Buren, Archibalds, of Houlton, and Powers & Guild, of Ft. Fairfield, for defendant. DEASY, J. Action of assumpsit brought to this court on exceptions to the ruling of the presiding justice directing a verdict for the defendant. Statement of Case. The plaintiff corporation was chartered by special act of 1909 (chapter 88). The portion of said act material to this case is a part of section 5, as follows: [1] The defendant contends that the contract is not binding on it because in making the contract the town acted by a committee and not by the selectmen as provided by section 5 above quoted. In effect the charter reads: "The town is authorized to contract by its selectmen." This language imposes upon the town no duty to contract. It confers a power to be exercised at the option, not of the selectmen, but of the municipality. The power lies dormant until vivified by a vote of the town. Having determined to exercise its power, (109 A.) a town this authorized may go further and by vote settle all the terms and conditions of the contract. In such case it may employ any hand to execute it. A committee other than the selectmen may be appointed for this purpose. Winterport v. Water Co., 94 Me. 215, 47 Atl. 142, 1045. act all other business." This was clearly insufficient to support the vote of ratification. Lovejoy v. Foxcroft, 91 Me. 370, 40 Atl. 141. Form of Action. [6] But for another reason the present action cannot be maintained upon the special count. The declaration is in assumpsit. The contract relied upon to support it is executed under the seals of both parties thereto. For breach of such a contract only an action of debt or covenant will lie. Dunn v. Motor Co., 92 Me. 168, 42 Atl. 389; Drew v. Western Union Telegraph Co., 111 Me. 346, 89 Atl. 144. Implied Contract. The plaintiff, however, contends that the town, having enjoyed the benefits of the company's service, is liable on an implied contract, and that damages for breach thereof may be recovered in this action of assumpsit. [2] But it is not essential that the town by vote agree upon the details of the contract. It may do this through agents. Governmental powers cannot be delegated. But negotiating and agreeing upon a contract is not a governmental, but an administrative, function which may be delegated. It is a "mere business act, and in its power to perform it the city differs in no respect from an ordinary business corporation or an individual, and it may delegate the power to perform such acts to agents or committees." Kramrath v. Albany, 127 N. Y. 580, 28 N. E. 400; Biddeford v. Yates, 104 Me. 506, 72 Atl. 335, 15 Ann. Cas. 1091; Reuting v. Titusville, 175 Pa. 512, 34 Atl. 918; Burge v. Rockwell, 120 Iowa, 495, 94 N. W. 1103; Burlington v. Dennison, 42 N. J. Law, 167. [3] But the right of delegating its powers to agents is by the charter now in question limited and restricted. Only the selectmen may be so employed. If the town had made its contract and by vote settled its terms, a committee could have been appointed as a mere instrumentality to execute it. Instead it elected to enter into the contract by agency. It disregarded the limitation contained in the charter. The contract made by the committee was not binding on the and there can be no ratification, and when the town. [4] It is urged that by force of the general statute (R. S. 1903, c. 4, § 76) the contract is valid. This general statute authorizes municipalities to make contracts for municipal lighting for terms of years and contains no limitation or direction as to the agency through which they may act. But the charter of 1909, being the later and more specific expression of the legislative will, controls if the general law is inconsistent with it. Isham v. Bennington Iron Co., 19 Vt. 248; Camp v. Wabash R. Co., 94 Mo. App. 272, 68 S. W. 98; Hartig v. Seattle, 53 Wash. 432, 102 Pac. 410; State v. Valentine (Tex. Civ. App.) 198 S. W. 1009; Rankin v. Gaston County, 173 N. C. 683, 92 S. E. 719; Sutherland on Stat. Construction (2d Ed.) 465; 36 Cyc. 1094; Rodgers v. United States, 185 U. S. 83, 22 Sup. Ct. 582, 46 L. Ed. 819; Dahnke v. People, 168 Ill. 102, 48 N. E. 140, 39 L. R. A. 197. Alleged Ratification. [5] It appears that at an annual town meeting held subsequently to the execution of the contract a vote was passed to approve and accept it. But there was no article in the warrant for the meeting upon which such vote could be legally based. The only article [7] Undoubtedly a municipal corporation may be held liable on an implied contract without a vote, deed, or writing expressly binding it. Farwell v. Rockland, 62 Me. 301; 28 Cyc. 667; 27 L. R. A. (N. S.) 1124. [8, 9] To this proposition there are, however, qualifications: "Where an express contract remains in full force, one is never implied by law." Charles v. Dana, 14 Me. 387; Holden v. Westervelt, 67 Me. 449; Nat. Bank v. St. Clair, 93 Me. 38, 44 Atl. 123. "When the act done is ultra vires, it is void, mode of contracting is limited and provided for by statute, an implied contract cannot be raised"-i. e. without conforming to the statutory limitation. "But a corporation, like an individual, is liable upon a quantum meruit when it has enjoyed the benefit of the work performed or goods purchased, when no statute forbids or limits its power to make a contract therefor." Kramrath v. Albany, 127 N. Y. 581, 28 N. E. 400; Howell Elec. Co. v. Howell, 132 Mich. 117, 92 N. W. 941; Nelson v. New York, 63 N. Y. 544; Lesieur v. Rumford, 113 Me. 323, 93 Atl. 838. The plaintiff contends that the express contract is clearly not ultra vires, that the limitation contained in the charter, unheeded in the making of the special contract, does not prevent recovery upon implied contract for lights furnished to and enjoyed by the town, and that, the express contract being unenforceable for reasons herein set forth, a contract is implied to pay the reasonable value of all benefits received by the municipality with the assent of its officials authorized to contract. 19 R. C. L. 1060, 1075. To this argument the defendant replies that as to light furnished between April 1, 1915, and March 1, 1916, the action is bar |