Compromiseexecuting release as accord and satisfaction.

lease and placed the same in escrow, this transaction did not amount to an accord and satisfaction, nor did it result in any binding contract between the parties.

An accord is "an agreement between two parties to give and accept something in satisfaction of a right of action which one has against the other, which, when performed, is a bar to all actions upon this account." Bouvier's Law Dict. p. 62.

While "an accord and satisfaction is a method of discharging a contract, or settling a cause of action arising either from a contract or a tort, by substituting for such contract or cause of action an agreement for the satisfaction thereof and an execution of such substituted agreement. 1 R. C. L. bottom paging 177. An accord is not a bar to an action on the original liability unless it has been fol-necessity of lowed by satisfaction. The original liability is not discharged by an executory accord, and, as long as the accord is executory, it is revocable at will by either party, and neither party can maintain an action against the other thereon. After a valid accord and satisfaction, the original liability is discharged. To amount to a bar, the accord must be fully performed. If, however, the agreement is that the promise, and

satisfaction.

-promise as satisfaction.

not the performance of the promise, is accepted as full satisfaction and extinction of the

original obligation, then, in such a case, it amounts to an accord and satisfaction. In other words, if the agreement between the parties is that the original liability is to be discharged and that the new promise is to be accepted as a substitute in satisfaction of the original liability, the original liability will be discharged and the promisor's subsequent failure to carry out the agreement will not revive it. Where the new promise has been accepted as an extinction and satisfaction of the original liability, and the new promise has not been performed, the promisee has a right of action against the promisor for his failure to perform. Tuttle v. Metz Co. 229 Mass. 272, 118 N. E. 291; Frankfurt-Barnett Co. v. William Prym Co. L.R.A.1918A, 602, 150 C. C. A. 223, 237 Fed. 21; Kinney v. Brotherhood of American Yeomen, 15 N. D. 21, 106 N. W. 44; 1 C. J. § 23, p. 533; 4 Page, Contr. §§ 2515, 2516.

"Generally, but not universally, if the new promise be founded upon a new consideration, and is clearly binding on the original promisor, this is a satisfaction of the former claim; and otherwise it is no satisfaction." 2 Parsons, Contr. § 683.

From the allegations of the answer, as well as from the writ itself, it clearly appears that the transaction which took place between the relator and the city council did not amount to an accord and satisfaction, and, if the conditional promise of the city could be held to constitute an accord, under the authorities it was revocable by the city at any time before it was executed.

We are unable to agree with the contention that the answer admits or fails to allege any fact necessary to make a good and complete defense to the matters and things alleged in the writ. If the allegations of the answer are true, then no valid settlement of a disputed claim between the relator and the city of Portland has ever been made, nor has the city ever undertaken to

pay the relator any amount of money whatever, except conditionally, and the condition upon which the payment was to be made has not been fulfilled. From the allegations of the answer it appears that, at the time the ordinances were passed by the city council, the relator conceded that he had no enforceable claim or demand against the city, but that, as losses had been sustained in the performance of the Pederson contract, the city ought, on moral considerations alone, to partially reimburse Pederson and his creditors for a part of such losses, and that the council was willing to do so if it had lawful authority to assume and pay a moral obligation; that it was at that time stipulated and agreed between the relator and the city council that, if the council would pass the two ordinances in question, he would execute a full release to the city and place the same in escrow; and that the city auditor should thereupon refuse to issue a warrant in payment thereof; and that, unless in those proceedings it should be judicially determined that the council had lawful authority to pay an obligation which was moral in its nature, and was not a legal obligation, then the relator was to receive no sum of money whatever. These facts, if true-and for the purposes of the demurrer they are admitted to be true-constitute a full and complete defense to the relator's contention that, by the passage of the ordinances and by the execution of the release, a valid, enforceable contract was created. The very basis for the enforcement of a contract, compromising a disputed claim, is that the parties should have acted in good faith, and that the transaction should be fair. To

sult in perpetrating a gross fraud upon the city.

Contract-neces

of minds.

In all contracts, whether of accord and satisfaction or the compromise and settlement of a disputed claim, or otherwise, it is essential to the validity of the contract that the minds of the parties have met sity of meeting in agreement with each other. There must be an aggregatio mentium, as otherwise the contract is not complete. The promise on the part of the city, as disclosed by the answer, was not an absolute one to pay the relator, but was one to pay upon the fulfilment of a condition. The relator now contends that the promise should be treated as an absolute, and not a conditional, one. This would violate the above rule, and would result in making a contract for the parties entirely different from the one which they made for themselves.

The condition upon which the promise was based has not yet been fulfilled, and, until the event upon which the promise was conditioned happens, the contract is unenforceable. Under the understanding and agreement, if, as set forth in the answer, the rights of the relator to the money have not yet become vested, and until the condition upon which the promise was made has been fulfilled, the city auditor is without lawful authority to issue the warrant, and his issuance of a warrant would be a violation of his official duty. The answer, therefore, states a good and complete defense to relator's contention that he is entitled to the issuance of a peremptory writ.

Without commenting upon the fact that courts pass upon concrete cases, and not abstract propositions of law, and ought not to depart from the universal rule that the duties and powers of courts are limited to render adto the determina- visory judgtion of rights actually controverted in the particular cases before them, and that this court is not the legal adviser of the

Courts-power

ments.

city of Portland or of the relator, or upon the futility of an arrangement whereby the city council promised to pay to the relator a sum of money on the condition that it should be first judicially determined that, under the charter provisions of the city of Portland, the council had authority to pay a moral obligation, it is only necessary to say that this court will not assume jurisdiction to compel the city auditor of the city of Portland to issue a warrant until the condition on which the promise was made has been fulfilled.

In this connection it is suggested that because the stipulation recited in the answer attempts to limit the jurisdiction of this court to the de

has authority to pay out the public money in settlement of a purely moral obligation, it is not binding, for the reason that courts pass upon the facts appearing before them, and that the jurisdiction of the court cannot be limited by the stipulation of parties so as to deprive the court of its power to pronounce judgment upon all of the material facts in the case, and that no stipulation of parties or counsel can enlarge the power or affect the duty of the court in this regard. Swift & Co. v. Hocking Valley R. Co. 243 U. S. 281, 61 L. ed. 722, 37 Sup. Ct. Rep. 287. We agree to the soundness of the legal principle contended for. If the stipulation had the effect of preventing the court from passing upon the facts actually appearing before it, or of depriving the court of the power to pronounce judgment upon all the material facts in the case, then we would disregard such stipulation in so far as it had that effect. But the stipulation in question was not

Stipulation

forced.

intended to have how far en- that effect. It was intended to to limit and qualify the agreement of the parties. To the extent that it does so limit and qualify the agreement of

the parties, it is our duty to give to the stipulation the effect which the parties intended it to have.

The answer also alleges that § 148 of the charter of the city of Portland provides that "the city of Portland shall not be bound by any contract nor in any way liable thereon unless the same is authorized by an ordinance, and made in writing and signed by some person or persons duly authorized thereunto by the council. But an ordinance may authorize any board, body, officer or agent to bind the city without a contract in writing for the payment of any sum not exceeding two hundred fifty dollars ($250).

The relator is attempting to enforce against the city of Portland an alleged executory contract, without alleging that this provision of the charter had been complied with. In this state the law is settled by an unbroken unbroken line of

Municipal cor

how created.

decisions that aporation-concompliance with the tract-liabilityprovisions of a charter such as this must be had before liability will attach against the city, or the city be bound by any contract not made in compliance with the provisions of the charter. Philomath v. Ingle, 41 Or. 289, 292, 68 Pac. 803; Beers v. Dalles City, 16 Or. 334, 336, 18 Pac. 835; Ward v. Forest Grove, 20 Or. 355, 358, 25 Pac. 1020; Richardson v. Salem, 51 Or. 125, 127, 128, 94 Pac. 34; MacDonald v. Lane, 49 Or. 530, 90 Pac. 181; Bridges v. Multnomah County, 92 Or. 214, 222, 180 Pac. 505.

The answer alleges that on December 14, 1921, the council of the city of Portland passed an ordinance repealing the two ordinances above referred to. This repealing ordinance recited the circumstances under which the two ordinances were passed and the conditions upon which their operation was to depend. The passage of this repealing ordinance was subsequent to the commencement of these proceedings. If, at the time the repealing ordi

nance was passed, the relator had acquired a vested right to have a warrant issued for the payment of said sum of money, the repealing ordinance might not be available to the defendant as a defense in these proceedings, since the city council would be without authority to destroy such vested right without the consent of the relator. But, if the condition upon which the operation of the repealed ordinances depend

-ordinanceattempting reimbursement of contractorrepeal.

ed was as alleged in the answer, the relator never acquired a vested right to the money, and the city council, therefore, had authority to repeal the two ordinances, leaving to the relator his remedy in an action at law.

Action-to recover losses incurred on city contract.

By the passage of the repealing ordinance, the authority of the auditor to draw the warrant was withdrawn, and, if the relator had a legal claim against the city, he had a right to enforce the payment thereof by an action at law. Our statute expressly directs that the writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law. But we can see no reason, and none has been suggested, which would prevent the city council, after the passage of an ordinance which allows a claim and directs its payment, from repealing such ordinance at any time before the payment had been made. It would seem that such power must necessarily be inherent in the city council in order to prevent, in any proper case, an imposition upon the city through fraud, accident, or mistake.

Municipal corporations-repeal of ordinance allowing claim.

Under its charter the auditor of the city of Portland is the "accounting and clerical officer of the city." He "shall approve no demand unless the same has been allowed by the officer, board, department, or com

mittee required to act thereon." Section 276.

"Every demand upon the treasurer except the salary of the auditor must before it can be paid be presented to the auditor, who shall satisfy himself whether the money is legally due, and its payment authorized by law." Section 278.

"When liability for any claim presented is not sufficiently apparent to him, he may delay the payment thereof until such liability shall be determined." Section 279.

"When any demand has been duly approved and audited, the mayor and auditor shall draw warrants on the treasurer therefor." Section 280.

By these provisions, it is the duty of the auditor, before paying any demand against the city, to satisfy himself that the money is legally due and that its payment is authorized by law. Until satisfied that the demand is legally due and is authorized by law, the auditor has no authority to draw a warrant in payment of any claim or demand. The duty devolving upon the city auditor to satisfy himself, before paying any demand, that the money is legally due, and that its payment is authorized by law, is one of great responsibility, and requires the exercise of highly important discretionloch, 54 Or. 305, 313, 103 Pac. 71, ary powers. In Naylor v. McColwhere the city council, without legal authority, had by ordinance directed the mayor to sign a warrant, and it was sought to compel the mayor, by mandamus, to sign the warrant, this court said: "We think that when, in the course of general supervision, he [the mayor] found that the council had illegally ordered a warrant drawn, it was his duty to refuse to give it a currency which might mislead possible innocent purchasers into the belief that it was for the payment of a legitimate claim."

We think that the principle that was applied to the facts in that case ought to be applied to those in this, so far as the duty of the mayor in

that case and that of the auditor in this is concerned, and that the principle there announced should be controlling here. When all of the provisions of the charter have been complied with, the drawing of a warrant by the auditor in payment of a legal, enforceable claim is a mere ministerial act; but, in a case like this, if the facts are as alleged in the answer, for the auditor to draw a warrant, whether the council pretended to authorize him to do so or not, would be a gross dereliction of duty upon his part.

Mandamus-to

compel issuance of warrantdoubt as to claim.

The municipal charter of the city of Portland, like all other municipal charters in this state, is a grant, and not a limita

Municipal corporations-extent of authority.

tion of power. The powers which may be exercised by a municipal corporation have been under consideration by this court in numerous cases, and the rulings of the court upon this question have been uniform. It was held in Beers v. Dalles City, 16 Or. 334, 18 Pac. 835, that "a municipal corporation is called into being by the state for its own purposes, and it is endowed with that measure of power and authority which the act creating it confers, and such implied power and none other as is necessary to carry into effect the powers which are expressly enumerated and delegated to it. 'Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.'

In a somewhat earlier case, Mr. Chief Justice Lord said, in Corvallis v. Carlile, 10 Or. 139, 141, 45 Am. Rep. 134: "In construing the powers given to a municipal corporation by its charter, regard being had for the ends to be accomplished, the courts have inclined to adopt a strict rather than a liberal construction of such powers, thus applying substantially the same rule that is applied to charters of private in

To the same effect, see Naylor v. McColloch, supra; MacDonald v. Lane, 49 Or. 530, 90 Pac. 181; Robertson v. Portland, 77 Or. 121, 128, 149 Pac. 545; Chapman v. Hood River, 100 Or. 43, 51, 196 Pac. 467.

consideration.

We think that, in conformity to the great weight of authority, the rule in this state is, a moral obligation is not a sufficient consideration to support an exec- Contract-moral utory express prom- obligation as ise, unless there has been an antecedent legal liability which has become suspended or barred by operation of some positive rule of law which extinguished the remedy, but not the debt, or where the promisee has suffered some detriment in reliance upon the promise, or where the promisor has received an actual pecuniary or material benefit for which he subsequently expressly promised to pay. Nine v. Starr, 8 Or. 49; Rohr v. Baker, 13 Or. 350, 10 Pac. 627; Glenn v. Savage, 14 Or. 567, 577, 13 Pac. 442; Forbis v. Inman, 23 Or. 68, 31 Pac. 204; Kiser v. Holladay, 29 Or. 338, 45 Pac. 759; Meyer v. Livesley, 56 Or. 383, 107 Pac. 476, 108 Pac. 121; Parker v. Daly, 58 Or. 564, 34 L.R.A. (N.S.) 545, 114 Pac. 926, 115 Pac. 723; Rask v. Norman, 141 Minn. 198, 169 N. W. 704, 17 A.L.R. 1296, and annotation; 1 Page, Contr. § 633.

In this case we are dealing with the council of a city, whose powers to appropriate money are limited and restricted by the provisions of the charter under which they are acting. We are not dealing with the rights of a private individual, or of a corporation, or the power of