of a benefit. The complaint further alleges that said contract with Keough & Donnelly was rescinded by the defendant on September 7, 1893, and that said work and improvement was never resumed or completed, and has been permanently abandoned by defendant; "That, had said improvement been completed as projected, access to plaintiffs' property from the center of St. Paul to the east city limits would have been secured therefrom, and said property would have been benefited thereby to the amount of the assessment imposed thereon as aforesaid."

To this complaint the defendant interposed a demurrer upon the ground that it did not set forth a cause of action. Demurrer overruled. Defendant appeals.

The plaintiffs place their right to recover distinctly upon the ground of a failure of consideration, and rely for their authority upon three decisions of this court, viz., Valentine v. City of St. Paul, 34 Minn. 446, 26 N. W. 457; Strickland v. City of Stillwater, 63 Minn. 43, 65 N. W. 131; McConville v. City of St. Paul, 75 Minn. 383, 77 N. W. 993.

In the Valentine case the assessment had been levied upon the plaintiff's property to defray the expense of grading a street, and he had paid the amount into the city treasury. Thereafter the proceedings were enjoined by the court, and the whole scheme abandoned. No work whatever was done towards carrying out the improvement, and the city retained the money. The court held that the effect of abandonment by the city of the project for and on account of which only the assessment had been made was that the consideration of the assessment wholly failed, and that an action would lie as at common law for money had and received.

In the case of Strickland v. City of Stillwater the city began proceedings for an entire improvement to grade parts of three streets, including that part of a certain street in front of plaintiff's property. An assessment of $159.61 was levied upon plaintiff's property in accordance with the rule of benefits, to meet the cost of the general expense. For some reason the city abandoned the grading of the street in front of plaintiff's premises, but completed the improvement otherwise. The plaintiff sued to recover the entire amount of the assessment which she had paid into the treasury.

The trial court rendered judgment in her favor for the full amount, but the judgment was reversed in this court upon the ground that the plan of improvement was a general scheme, and it did not fol low that, because the grading was not done in front of plaintiff's premises, she was not benefited by the improvement at other points; and hence, if she could recover at all under such circumstances, the measure of damages would be the difference between what she paid and her actual benefits accruing from the work as done. While the opinion discusses at some length the possible rights of parties under such conditions, we need only to ascertain the true grounds upon which the decision rests. The rule of damages adopted by the court below was manifestly wrong, but whether, under the facts presented in the record, plaintiff could recover upon some other rule of damages, we are not called upon to decide.

There are a few facts, however, appearing in that case which must be emphasized, and which clearly distinguish the case from the one before us. First, in the Strickland case the improvement was completed except in front of plaintiff's property, a distance of about 300 feet; second, that the cost of so completing the improvement was decreased presumably in the amount of the sum assessed against plaintiff's property; third, an amount equal to the sum paid by plaintiff was retained by the city in its treasury. Upon this state of facts possibly the plaintiff might recover as for a partial failure of consideration.

The controversy in the case of McConville v. City of St. Paul grew out of the same improvement as is involved in the case now under consideration. In that case the plaintiff, who was the owner of lots abutting on Third street east of Clarence street, paid into the city treasury the amount of the assessment, and, after the work was abandoned, brought suit to recover it, relying upon the authority of the Valentine and Strickland cases. While this court sustained a judgment in his favor, we think that the facts presented in the record, and the facts assumed and conceded to be before the court, make the case quite different from the one presented by the complaint in this action. It appears from the record in the MeConville case that the grading had been completed from Earl street east to within a short distance of Clarence street; that the plain

tiff's property was situated about one-half mile east of Clarence street; and that the city left the street between said points in such condition as not to permit of travel. The court rests its decision upon the authority of the Strickland case, and it appears from the opinion that the facts were assumed to be similar. The court assumed that the city had abandoned that part of the work east of Clarence street, and could not have referred to the part west of that point, because the record showed as stated that the work was completed to Clarence street. Again, it was assumed or conceded, if it does not appear from the record, that the money paid in by the plaintiff was still unexpended, and was retained by the city. In this respect the following language is used in the opinion:

"And with commendable forbearance he waited nearly six years for the city to complete its work after obtaining his money in August, 1892, which it keeps without the slightest evidence of its intent to complete its work of grading and improving the street named."

Whatever may have been the actual fact, it is apparent that the decision of the court in the McConville case was based upon the assumption, justified by the express or implied concession of counsel on the argument of the case, that the city, having received and retained the plaintiff's money, abandoned the further prosecution of the proposed improvement. This brought the case within the principle of the Valentine and Strickland cases.

We now come to the complaint in this action, and we find that it does not appear that the work was completed to Clarence street, and the exact position of plaintiffs' property is not stated. It ap pears that work was done in a general way along East Third street approaching Clarence street, and that the street was rendered impassable to plaintiffs' property by the acts of the city in partially executing the work, and then abandoning its further prosecution. It does not appear whether any work was done in front of plaintiffs' property. On this state of facts we would not be justified in holding that the city had abandoned that part of the work east of Clarence street, as distinguished from the other part. Again, there is no allegation that the money realized on the sale of plaintiffs' property was not expended on the improvement. There are some gen

eral statements in the complaint to the effect that the defendant retained and refused to pay plaintiffs the money received on the sale, but, when taken in connection with the fact that a large part of the work was done, and no cause for the abandonment being assigned, these statements are too indefinite, and do not amount to an allegation that the money had not been so expended. It would be immaterial, if the city were otherwise liable, whether it retained the money in its treasury, or diverted it to some other use. Defendant could not render itself liable to an action for money had and received by abandoning the improvement, and not expending the money, and then shield itself by using it for some other purpose. The plaintiffs have their right to recover upon the authority of the cases mentioned, if the facts alleged are the same. They have followed the complaint in the McConville case, and have argued and submitted the case upon the supposition that the facts are identical, yet it appears that the facts are not the same.

We are then met with this question: Can plaintiffs recover, as suming that the city did not complete any special part of the work, --did not abandon any special part as distinguished from the whole, but expended the money, so far as collected, upon the general improvement, leaving the whole incomplete? We think not. Under such circumstances the mere stopping of work because the money had been expended would not confer upon lot owners the right to recover the money paid. So far as appears from the complaint, this money may have been used in the undertaking, and, whatever remedy plaintiffs might have, there is no relief upon the ground of a failure of consideration.

While the questions already discussed dispose of this case, another claim of defendant is presented for decision with a view to a possible amendment of the complaint. It is this: That the plaintiffs cannot recover in any event, because they are not the parties in interest, and have suffered no injury. This assertion is based upon the fact of the sale of the premises in question by the city to Heyderstaedt. Appellant contends that, because plaintiffs suffered the premises to go to a sale, and did not redeem, they have not paid any money on the assessment, and that, whoever else may recover, plaintiffs cannot. We do not so hold. The law provides that the amount of the judgment. shall be a first lien upon the premises.

The plaintiffs may pay the money, or permit their property to stand subject to the lien, or be absorbed in payment of it. In either case they pay the amount. And the purchaser at the sale does not succeed to their rights. We need not here decide what the rights of a purchaser would be. The question is not directly involved. But we assume that in no event could a purchaser recover his money except upon the same state of facts as would give lot owners the right, and the city is not called upon to pay the money twice. Under such conditions it is possible that a purchaser might recover as for a failure in part of the consideration, growing out of the im plied contract on part of the city to complete the work, and expend the money, presumably for the benefit of the premises. Whatever be the legal remedy of the purchaser, if any, he has not succeeded to plaintiffs' claim, and the positions of the two are not inconsis tent.

It is suggested that plaintiffs must redeem before they can maintain this action. In case of redemption the money would go to Heyderstaedt, and the city would act only as the agent to pay it over, and the only effect such action would have upon plaintiffs would be to change the nature of the payment by substituting the money in place of the lot. In either case the city would receive the money, and the plaintiffs pay it.

The order is reversed.

882

FREDERICK E. KREATZ v. ST. CLOUD SCHOOL DISTRICT.

January 24, 1900.

Nos. 11,930-(194).

516 Municipal Corporation-Building Committee-Repair of Heating Plant.

79 14

84 316 84

402

In an action to recover from defendant school district the value of repairing a heating plant injured by the action of frost, the question of the authority of defendant's officers and agents and its liability considered. Held (1) that the court erred in granting defendant's motion for judgment notwithstanding the verdict; (2) that, the defendant having moved for a new trial in case the motion for judgment be not granted, the judgment be reversed, with leave to defendant to apply for a new trial.