1. (a) In an action against a municipality upon a contract the petition must clearly show that the contract was valid under the charter powers.
(b) Where the charter declares that the mayor and council shall be empowered to revoke contracts in the city's corporate capacity, the mayor, acting alone and separately from the council without concurrence by that body, has no authority to make a valid contract on the city's behalf.
(c) Plaintiff's petition, which did not allege that the mayor and council acting as a body entered into the contract in the city's corporate capacity but alleged merely that the city entered into the contract "by and through" its mayor, failed to state a cause of action.
Shaw-Lightcap, Inc. brought this action to recover in contract against the City of Jonesboro. Material averments of the petition are as follows: "The City of Jonesboro, by and through its duly constituted Mayor D. Hugh Dickson, employed petitioner to pave with concrete the sidewalk extending south from Mill Street to the Riever Service Station site at the Church Street intersection . . . Prior to the performance of the paving, your petitioner quoted the figure of $1600.00 as being the cost of same. Which figure was accepted by the said mayor . . . That this work was then completed in 1963 and despite repeated demands, the defendant has utterly failed and refused to pay for said services."
Defendant assigns as error the judgment of the trial court overruling defendant's oral motion to dismiss in the nature of a general demurrer.
"As a general rule of law, when authority is delegated by the legislature to enter into contracts in a certain specified manner, it becomes the duty of any person dealing with such municipality in a contractual relation to see that there has been a compliance with the mandatory provisions of the law limiting and prescribing its powers. It would follow from this principle, that when a suit is instituted by one against a municipality upon a contract, it should be clearly shown in the petition setting forth the cause of action that the contract was valid under the charter powers conferred upon the city." Wiley v. City of Columbus, 109 Ga. 295, 296 (34 SE 575); Mayor &c. of Sugar Valley v. Mills, 146 Ga. 210, 212 (91 SE 17); Eureka Fire Hose Mfg. Co. v. Mayor &c. of Eastman, 16 Ga. App. 630 (2) (85 SE 929).
Construing the petition most strongly against the pleader as we are required to do the inference is demanded that in dealing with plaintiff the Mayor of Jonesboro acted as the city's agent individually and separately from the council without concurrence by that body either formal or informal. However, the charter of the City of Jonesboro vests authority for governmental action of the kind in question in the mayor and council as a body. Cf. Mayor &c. of Sugar Valley v. Mills, 146 Ga. 210
, supra. The mayor acting alone was without authority to bind the city. "While generally an allegation of agency is sufficient to withstand both general and special demurrer (see Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324
, 58 SE2d 559
), such is not true in cases involving the powers and duties of public officials (see Code 89-903), where the agent is without authority to act." Ingalls Iron Works Co. v. City of Forest Park, 99 Ga. App. 706
, 707 (109 SE2d 835
Since the petition here fails to show that the express contract sued upon was entered into on behalf of the city by the mayor and council as a body and as required by the city charter, it stated no cause of action, and the trial court erred in overruling defendant's oral motion to dismiss.
City of Eastman v. Georgia Power Co., 69 Ga. App. 182 (25 SE2d 47)
, and City of Gainesville v. Edwards, 112 Ga. App. 672 (145 SE2d 715)
, have no bearing on this case because plaintiff here elected to sue upon an express agreement and not upon the theory of implied contract.
Judgment reversed. Frankum and Hall, JJ., concur.