fendant is not entitled to a final judgment here on this branch of the case. Rice v. Bennington County Sav. Bank, 93 Vt. 493, 512, 108 Atl. 708.

Some question respecting the sufficiency of the pleadings to raise the issue was made below, but it is not briefed, and so is not properly before us. The question will not be anticipated, since the plaintiff will have an opportunity to amend the complaint to meet the objection, if so advised.

So far as concerns the claim for services recovered in the second special verdict, it is enough for present purposes to say that, tested by the principles already stated, the existence of a contract by the intestate to pay therefor was a question for the jury. Not only had the relations of the parties changed, but the services for which recovery was had were rendered after a time when the evidence, by way of declarations, tended to show a mutual expectation and understanding that they were to be paid

Evidence-declarations of deceased.

for. It sufficiently appears from what has been said that the evidence respecting declara

tions was properly received. Certain exceptions were taken to the charge, and to the refusal of requests to charge, involving the question of the Statute of Limitations. It would be unprofitable to examine these exceptions, as the same points are not likely to arise on a retrial. The defendant concedes that there would be no question of the Statute of Limitations if the understanding was, as plaintiff claims, that she was not to be paid until after the death of her brothers. Other points raised are sufficiently covered by the discussion of the main questions.

Judgment reversed, and cause remanded.

NOTE.

Moral obligation as a consideration for an executory promise is the subject of the annotation in 17 A.L.R. 1299, which is supplemented by the annotation following STATE EX REL. BAYER V. FUNK, post, 635.

V.

— conditional offer

compliance.

necessity of

2. An offer by a city to reimburse a contractor for losses conditioned on 25 A.L.R.-40.

his obtaining the judgment of the court that it had a right to do so does not become binding until the condition is complied with.

Compromise executing release as accord and satisfaction.

3. The placing by a contractor of a release in escrow in accordance with the terms of a municipal ordinance undertaking to reimburse him for losses in performing a contract with the city upon compliance with certain conditions is not an accord and satisfaction.

- necessity of satisfaction.

4. An accord is not a bar to an action on the original liability, unless it has been followed by satisfaction. [See 1 R. C. L. 199; 1 R. C. L. Supp. 62.]

- promise as satisfaction.

5. A promise may be accepted as satisfaction so as to make an accord and satisfaction binding.

[See 1 R. C. L. 200; 1 R. C. L. Supp. 62.]

tended to limit and qualify an agreement which the court is called upon to enforce.

[See 25 R. C. L. 1101.] Municipal corporation contract liability

how created.

11. There must be compliance with a provision of a municipal charter that the city shall not be bound by any contract unless it is authorized by ordinance and made in writing by a person duly authorized, before liability will attach against the city. [See 19 R. C. L. 1063, 1064.] - ordinance attempting reimbursement of contractor repeal. 12. An ordinance authorizing_reimbursement of a contractor for losses incurred in the performance of city work may be repealed at any time before the condition on which the liability is to attach has been complied with. Action

to recover losses incurred on city contract.

13. An action at law, and not mandamus to compel issuance of a warrant, is the remedy upon repeal of an ordinance authorizing reimbursement of a contractor for losses incurred in performing work for the city. [See 18 R. C. L. 224.] Municipal corporations ordinance allowing claim.

repeal of

14. An ordinance allowing a claim and directing its payment may be repealed at any time before payment is made.

[See 19 R. C. L. 1047.] Mandamus to compel issuance of warrant doubt as to claim. 15. Mandamus will not lie to compel a municipal auditor to issue a warrant for payment of a claim against the city which he is not satisfied is legally due.

[See 18 R. C. L. 220, 223; 3 R. C. L. Supp. 221.] Municipal corporations extent of authority.

16. A municipal corporation has only such power as is expressly granted to it.

[See 19 R. C. L. 706, 707.] -authority to pay debts obligations.

moral

17. Authority conferred upon a municipal corporation to appropriate money to pay the debts, liabilities, and expenditures of the city, does not include power to pay moral obligations.

[See 19 R. C. L. 724.]

Mandamus

of those who do not come into court with clean hands.

[See 18 R. C. L. 138.]

The facts are stated in the opinion Messrs. Martin L. Pipes, John M. Pipes, and George A. Pipes for plaintiff.

Messrs. Frank S. Grant and L. E. Latourette, for defendant:

The alleged verbal contract would not be binding upon the city, for the reason that the city charter provides that the city shall not be bound by any contract or in any way liable thereon unless the same is authorized by ordinance, made in writing, and signed by some person duly authorized by the council.

Grafton v. Sellwood, 24 Or. 118, 32 Pac. 1026; Smart v. Philadelphia, 205 Pa. 329, 54 Atl. 1025; Montague Compressed Air Co. v. Fulton, 166 Mo. App. 11, 148 S. W. 422; McGovern v. Boston, 229 Mass. 394, 118 N. E. 667; Creekmore v. Central Constr. Co. 157 Ky. 336, 163 S. W. 194; Cotter v. Kansas City, 251 Mo. 224, 158 S. W. 52; McQuillin, Mun. Corp. § 1179; Dill. Mun. Corp. 5th ed. §§ 783, 790.

The courts will not, by mandamus proceedings, aid a relator who is seeking to obtain an unfair advantage, or when the granting of the relief would be unjust or inequitable or a fraud.

26 Cyc. 150, 155; 13 Enc. Pl. & Pr. 495, 499; 18 R. C. L. Mandamus, § 53; United States ex rel. Turner v. Fisher, 222 U. S. 204, 56 L. ed. 165, 32 Sup. Ct. Rep. 37; State ex rel. Anderson v. Hare, 78 Or. 540, 153 Pac. 790.

The ordinance does not constitute a contract or evidence any contract, but is merely a step taken to authorize the auditor to draw a warrant for the money referred to. Ordinances or resolutions of this character are not construed into a contract nor as evidence of a contract.

19 R. C. L. Municipal Corporations, § 348; McCrossen v. Lincoln County, 57 Wis. 184, 14 N. W. 925; Carskaddon v. South Bend, 141 Ind. 596, 39 N. E. 667, 41 N. E. 1; State ex rel. Schaw v. Noyes, 25 Nev. 31, 56 Pac. 946.

of the court.

Even if an agreement had existed it was not an accord and satisfaction; it was not executed, and was not binding as an accord and satisfaction.

1 Enc. L. & P. 637; 1 C. J. 530.

An instrument in escrow does not become effective until delivery is made.

16 Cyc. 576.

Rand, J., delivered the opinion of the court:

As heretofore stated in State ex rel. Bayer v. Funk, Or. --- 199 Pac. 592, these proceedings were brought on the relation of J. C. Bayer, trustee, against the defendant, as auditor of the city of Portland, to compel defendant, as auditor, to issue to the relator a warrant for $36,702.84.

This controversy grows out of a contract for the construction of the Auditorium Building, in the city of Portland, entered into by the city with Hans Pederson on March 22, 1916. Pederson, after commencing the construction of the building, becoming involved, on May 3, 1917, joined with his creditors and the sureties upon his bond to the city in entering into a contract with J. C. Bayer, the relator, as trustee, wherein, with the consent of the city, it was agreed that the relator, as trustee for Pederson and for his bondsmen and creditors, should carry out Pederson's contract with the city, and should receive and disburse all moneys to be paid by the city upon the Pederson contract.

It now appears that the contract between Pederson and the city has been completely performed by Pederson and the relator on the one side, and by the city on the other; that the city took no part in the

construction of the building, other than to completely perform the contract on its part; that the city has paid all sums it contracted to pay; that, in addition thereto, it has already paid to the relator, as trustee, the sum of $21,525, which sum was paid to reimburse Pederson for an error which he claimed to have made in computing the bid upon which he was awarded the contract; that the city has also allowed and paid, over and above the contract price, $11 per thousand for the brick entering into the construction of the building; and that other considerations of value, which the city was not required to make, were made by the city in favor of relator and Pederson. It also appears that a final settlement was made by the city with Pederson and the relator, and that a final receipt was given, and that a full and complete release to the city was executed and delivered by the relator and by Pederson, discharging the city from all liability to the relator or to Pederson upon or in connection with said contract.

In our former opinion we overruled a demurrer to the answer to the first alternative writ of mandamus, and allowed the defendant ten days in which to file a reply. Subsequently to the filing of the reply, upon the petition of the relator, an amended alternative writ was issued. To this amended alternative writ the defendant answered, and to this answer the relator has demurred, upon the ground that the facts stated in the answer do not constitute any defense to the writ, or show any fact why the peremptory writ should not isssue. The demurrer attempts to segregate the new matter alleged in the answer into separate parts, and to demur to each. We shall treat the demurrer as going to the entire an

swer.

The facts alleged in the present writ are substantially the same as those alleged in the former writ. The brief filed on behalf of the relator states: "The only difference between the original writ and the

amended writ is that the amended writ alleges the claims more particularly than the former writ, and that it has omitted the allegations of the dereliction of the city, and substituted therefor that the contractor and the relator claimed those facts to be true, and that that claim was settled by a compromise."

Upon the former appeal the relator's brief stated his contention at that time to be as follows: "As we view it, there is only one question involved in this controversy, and that is whether or not, under charter powers of the city of Portland, the council has the authority to pay moral obligations existing against the city."

The present writ, in substance, alleges that relator had an unliquidated, disputed claim against the city of Portland for an amount in excess of $36,702.84, which the city was under a legal obligation to pay; that the city offered to pay said sum as a compromise of said claim, upon condition that the relator should execute a release, discharging the city from all obligations, legal, moral, or equitable, in favor of the relator and Pederson, and should place the same in the hands of a third party, to be delivered to the city when a warrant for said sum in favor of the relator was issued in payment thereof; that the city accepted said offer, and performed on its part by the passage of two ordinances, one of which authorized the payment of said sum to the relator, and the other appropriated the money for such payment; that the relator executed the release and delivered the same in escrow, and directed that it should be delivered to the city when a warrant was drawn for the payment of the money.

Because the answer admits that the two ordinances were passed, and a release was executed and delivered to an escrow holder, the relator contends that the transaction in effect created a legal obligation upon the city to pay to the relator the sum of $36,702.84. In support of