Opinion
No. 31527.
February 4, 1935.
MUNICIPAL CORPORATIONS.
Express contract held to exist between municipality building sewer and contractor for payment of valves and hydrants furnished by contractor, notwithstanding that minutes of board by which contract was let did not show number of hydrants and valves nor prices thereof, where contractor's written bids submitted to board upon which contract was awarded embodied plans and specifications for sewer previously adopted by board and prices of valves and hydrants, and could be looked to in addition to minutes to establish express contract.
APPEAL from circuit court of Newton county.
HON. D.M. ANDERSON, Judge.
Action at law upon open account by the Columbian Iron Works against the Town of Decatur instituted in the county court, wherein judgment was entered for the defendant. The circuit court to which an appeal was taken affirmed the judgment, and the plaintiff appeals. Reversed and remanded.
Bozeman Cameron, of Meridian, for appellant.
The minutes of the Mayor and Board of Aldermen seem to have been very imperfectly kept, and the minutes do not contain sufficient data to show the terms of the contract in that they fail to show the number of hydrants and valves purchased and the price to be paid therefor, but an express contract with the plaintiff is shown by the minutes in connection with other records of the Mayor and Board of Aldermen.
The municipality is bound by an implied contract.
Church v. Vicksburg, 50 Miss. 601.
The doctrine of implied municipal liability applies to all cases where money or other property of a party is received under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do.
Edwards House v. City of Jackson, 138 Miss. 644, 103 So. 438; Church v. Vicksburg, 50 Miss. 605; Argenti v. San Francisco, 16 Cal. 255.
The liability of municipal corporations upon implied contracts is established by the great weight of authority and by many texts.
44 C.J. 136; 19 R.C.L. 1060, sec. 349; 84 A.L.R. 936; Vito v. Simsbury, 87 Conn. 261; Hitchcock v. City of Galveston, 96 U.S. 341; 24 L.Ed. 659; Boise, etc. Water Co. v. Boise City, 230 U.S. 84, 57 L.Ed. 1400.
It is manifest, from the entries upon the minutes of the Mayor and Board of Aldermen, and from the other testimony in the case, that the town intended to purchase, and did purchase, from the plaintiff the articles here sued for, at the prices submitted in plaintiff's bid.
It is further manifest from the minutes and other testimony in the case, that the town of Decatur recognized the plaintiff's claim as a valid indebtedness of the town, and sought to pay plaintiff's claim in good faith, and that no objection to the validity of plaintiff's claim was made by the town until this suit was brought.
Section 2902, Code of 1930, is not applicable to the facts shown by the record in this case; and if applicable, does not prevent the town from being liable in this case upon an implied contract, or a quantum meruit.
This suit is not based upon any contract entered into by any officer of the town of Decatur on its behalf; and does not, therefore, come within the literal prohibition of this statute.
If there be any contract in this case, as shown by the record, it is a contract made by the municipal board and evidenced by its minutes and the other documents referred to therein.
Marion County v. Foxworth, 83 Miss. 677; Church v. Vicksburg, 50 Miss. 601; Edwards House Co. v. City of Jackson, 138 Miss. 644.
W.M. Everett, of Decatur, for appellee.
No contract at all was ever established in the trial or county court, either expressed or implied.
It is admitted by appellant's brief that, the minutes of the municipal board was so imperfectly kept and do not contain sufficient data to show the terms of the contract, sued upon by which to bind the town.
We submit that if any materials furnished by the appellant went into the water works or sewerage system of the appellee, it went there not by the command of the town, or its officers speaking through its minutes, but went there by some personal act unauthorized, not to the appellee or its agents, but through a construction company.
The case at bar comes clearly within the purview of Section 6064, Chapter 154, Miss. Code 1930.
There can be no doubt that, the public, contractors, dealers and supply houses have been and are now charged with notice of this section of the Code referred to, and if they choose to deal with individuals, such as the record facts in this case shows might have been true, instead of the body of the municipal board as a whole, knowing by its written mandates they can have no one to complain of except themselves.
American Dis. Co. v. Oktibbeha County, 110 So. 869; Franklin County v. Am. Dis. Co., 153 Miss. 583, 121 So. 271.
The mayor or any member of the board may some times bind the board or the city provided and if the statutes are strictly complied with, but in the present case at bar, neither the mayor nor any member of the board had the power or authority to bind the board, because the statutes were not even attempted to be complied with, in any sense of the word.
Kidder v. McClanahan, Mayor, et al., 126 Miss. 179, 88 So. 508; Universal Motor Company v. Newton County, 158 Miss. 873, 130 So. 791.
An officer shall not enter into any contract on behalf of the state, or any county, city, town or village thereof, without being specially authorized thereto by law, or by an order of the Board of Supervisors or municipal authorities.
Section 2902, Code of 1930; Kidder v. McClanahan, Mayor, 126 Miss. 179, 88 So. 508.
If the appellant is precluded from directly showing a contract of purchase by the minutes of the town board, then it cannot show indirectly by circumstances any such contract, and if the contract is said to be established by the record, then it comes strictly in the purview of the statutes cited and the appellant must fail.
Argued orally by A.S. Bozeman, for appellant.
The appellant brought this suit in the county court of Newton county against the town of Decatur, in an action at law to recover, upon open account, the sum of six hundred eighty-one dollars and sixty cents less a payment to it by the town of one hundred dollars, or a balance of five hundred eighty-one dollars and sixty cents. The account was sworn to.
On behalf of the appellee, there was a plea of the general issue and an affidavit denying the account.
Upon the hearing, at the conclusion of the appellant's motion to exclude the evidence, the court sustained said motion and entered a judgment for the appellee and against the appellant for costs. The cause was appealed from the county court to the circuit court and there affirmed, and appeal is prosecuted here.
The case was evidently presented in the court below, as it is here, on the theory that there was no liability because the proof did not sustain an express contract, and that the town was not liable upon an implied contract.
It is asserted here by the appellant, first, that there was an express contract; and, second, that the town was liable on a quantum meruit upon an implied contract.
The minutes of the mayor and board of aldermen of the town of Decatur show that it was expressly agreed, prior to April 4, 1929, that resolutions had been passed, under the statute providing therefor, for the consideration of a waterworks and sewer system in the town, and that plans and specifications had been adopted therefor, and that such plans and specifications provided for hydrants and valves of the number and kind furnished by the plaintiff in the court below, and that such hydrants and valves were actually used in said waterworks system. The minutes also show that the mayor and aldermen received sealed proposals for such materials and labor as would be necessary for the construction of said system, as appears on page 269 of the minute book of the town of Decatur, and that the advertisement for said sealed proposals was duly published in the Newton Record. This published notice recites that the plans and specifications were on file. The minutes further show that on the day fixed in the notice, April 25, 1929, the mayor and board of aldermen of the town of Decatur had before them the bids submitted for the various items mentioned in the plans and specifications, and that they were tabulated and canvassed, and several bidders awarded contracts. The contract for the valves and hydrants mentioned in the plans and specifications was awarded to the Columbian Iron Works. The number, quality, and price were not mentioned in this order or resolution. The bid of the iron works was in conformity with the plans and specifications, the original of which was before the mayor and board. There was no copy thereof upon the minutes, but this bid showed it was in conformity with the items sued for. A carbon copy of the original was offered in evidence, and there was no objection thereto by the town.
It seems to be the contention of the appellee that there was no express contract for the reason that the prices of the articles furnished to the town by the appellant, and confessedly appropriated and used by said town in its public construction plan, were not on the minutes, the price being a material element of a contract, and neither did the minutes show the number of the hydrants and valves.
The only question really presented is, Was this bid in writing submitted by the iron works competent, and could it be looked to in the establishment of an express contract? There could be no doubt if this written bid submitted to the mayor and aldermen, and upon which they awarded the contract to the appellant, can be looked to in addition to the minutes. If so, then there is an express contract, and the town is liable.
In the case of Dixon v. Greene County, 76 Miss. 810, 25 So. 665, it is settled that plans and specifications adopted by a board, and on file and referred to as such, need not be copied on the minutes, but may be looked to as part of the record. So that, in the case at bar, the number and kind of hydrants and valves may be ascertained from the plans and specifications. All the papers referred to, and before a board, and adopted by them, constitute a part of the same transaction, and are in fact the acts of the board.
We construed this to be the holding of the court in the case of Marion County v. Foxworth, 83 Miss. 677, 36 So. 36.
We think, therefore, that the court below erred in excluding the evidence offered by the appellant, and on that evidence an express contract was established. Having reached that conclusion, we deem it unnecessary, at this time to determine whether or not a municipality may be held liable, under the existing statutes, upon an implied contract. The judgment of the court below, therefore, will be reversed, and the cause remanded.
Reversed and remanded.