Opinion
No 38927.
June 5, 1944.
1. COUNTIES: Contracts: County Budget Law Applicable. The county budget law is applicable to the purchase of supplies by a county of less than 50,000 inhabitants.
2. COUNTIES: Contracts: Courts: Presiding Judge of County Court May Not Authorize Purchases. A county court performs its functions as a constituted body and the presiding judge does not have the power to make a contract on behalf of the county or to authorize the purchase of supplies.
3. COUNTIES: Courts: Contracts: Purchases by County Court Require Record. There must be a record of the action of the county court authorizing the purchase of materials. Verbal understandings with county judges are not valid.
4. COUNTIES: Contracts: No Recovery Under Curative Statute. Plaintiff was not entitled to recover under Sec. 13768 R.S. 1939 for materials furnished. The statute affords relief only where the parties have not followed the required form of procedure in executing a contract, and does not give the claimant a right to recover where he has performed under a contract with an official not authorized to make a contract.
Appeal from Christian Circuit Court. — Hon. Tom R. Moore, Judge.
REVERSED.
Franklin P. Brewster, Jr., for plaintiff-appellant.
(1) This suit was for material furnished and a formal written contract was not required. The signed orders for the merchandise were sufficient. Sec. 13768, R.S. 1939; Bryson v. Johnson County, 100 Mo. 76, 13 S.W. 239; Buchanan v. Ralls County, 283 Mo. 10, 222 S.W. 1002. (2) The trial court found and the record shows that these purchases were made by the county court and not by an agent or employee. (3) The county court by reason of its office and duties, had authority to purchase these supplies and a formal order of record by the court was not required. The county court is charged with the duty of maintaining county property. Sec. 2480, R.S. 1939. (4) An officer of a county has implied authority to purchase supplies necessary in the performance of his duties. K.C. Sanitary Co. v. Laclede County, 307 Mo. 10, 269 S.W. 395; K.C. Disinfecting Mfg. Co. v. Bates County, 273 Mo. 300, 201 S.W. 92; Buchanan v. Ralls County, 283 Mo. 10, 222 S.W. 1002. (5) An order of record by the county court was not required, as such order would be a form of proceedings prescribed by law and such omission is cured by Section 13768. Sec. 13768, R.S. 1939; Cummings v. Clinton County, 181 Mo. 162, 79 S.W. 1127. (6) The trial court erred in ruling that the County Budget Law limited recovery. The County Budget Law, as applied to counties of less than 50,000 population, is merely directive and does not render void contracts failing to comply with its provisions. Secs. 10910-10917, R.S. 1929.
Gordon J. Massey for defendant-appellant.
(1) No county . . . shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract including the consideration shall be in writing and dated when made, and shall be subscribed by the parties, or their agents authorized by law and duly appointed and authorized in writing. Sec. 3349, R.S. 1939. (2) This section is intended for the protection of the City (County) and not for those who became obligated to the city. Weston v. Bank, 192 S.W. 126. (3) Duplicate copies shall be made and prescribed of any contract made by the county and others. Sec. 3350, R.S. 1939. (4) There never was at any time any record made by the county for the purchase of the supplies sued for herein, and absent such record the purported contract is void. The county court can speak only by its record and conversations of a judge outside of the record is inadmissible. Decker v. Deimer, 229 Mo. 296. (5) As the action of the county court must be shown by its records, oral testimony is inadmissible to prove the making of a contract with the county to construct or repair a public road. Dennison v. St. Louis County, 33 Mo. 168. (6) A county court may speak only through its records, and ex-officio, verbal understandings with county judges are not valid and binding. Thompson v. City of Malden, 118 S.W.2d 1059. (7) Ralph Stewart, the janitor was not authorized by reason of his position as janitor to bind the county by contract and since the county court did not in writing authorize him to purchase said supplies all of his acts were void. (8) Section 13768, R.S. 1939, does not apply since the preliminary steps required by Section 3349, R.S. 1939, were not taken. Requirement of this section, as to authorization of agent to purchase supplies for county, is not dispensed with by reason of failure to follow prescribed legal steps. Kansas City Sanitary Co. v. Laclede County, 269 S.W. 395; Miller v. Douglas County, 204 Mo. 194. (9) The evidence shows that there was not sufficient money placed in the budget for the payment of the merchandise sued for. The facts show that at the time of the purchase only the amount found by the court was in the budget. There being no funds in the budget for the payment of the merchandise no one could contract for same.
Plaintiff, chemical company, sued Christian County for $616.34 for soap and disinfectant [736] sold to the county for use in the court house and alms house. It recovered judgment for $283.31. No findings of fact or conclusions of law were given but the county states the amount of the judgment was determined by the sum in the county budget available for the purchase of these materials. Both parties have appealed.
The chemical company contends it is entitled to judgment for the full amount because the county budget law does not affect its transactions with Christian County. That county is one of less than 50,000 inhabitants. Only Sections 10910 to 10917 inclusive R.S. 1939 of the budget law apply to such counties. It claims that Section 10932 which invalidates contracts made in violation of the county budget law does not apply to counties of this class.
The same contention was raised in Missouri-Kansas Chemical Corporation v. New Madrid County, 345 Mo. 1167, 139 S.W.2d 457. There we held that any payment ordered by the county court of a county of less than 50,000 inhabitants, when there was no balance budgeted with which to make payment, would be void under the provisions of Section 10917 applicable to such county. Therefore, it was of no consequence whether Section 10932 was applicable or not.
The county contends that although the materials were received there was no valid contract for their purchase. The materials were delivered under six separate written orders covering a period of sixteen months. One of the orders was signed by the presiding judge of the county court, the other five were signed by the court house janitor. The presiding judge testified the county court attempted to adopt a rule "that all purchases by the janitor should be talked over with the court as they were short of funds." Section 13766 authorizes the county court by an order made of record to appoint an agent to make any authorized contract on behalf of the county. The county clerk testified there was no record authorizing the janitor or any one else to buy these supplies. Under the circumstances the janitor was not the agent of the county and his purchases did not bind the county. The same is true of the presiding judge. He likewise was not the agent of the county, nor did he have authority in his individual capacity as presiding judge to make a contract on behalf of the county. A county court performs its functions as a constituted body. Its three members acting individually have no power to obligate the county. Carter v. Reynolds County, 315 Mo. 1233, 288 S.W. 48. It is not contended that the presiding judge was acting under authority of Section 2493 which provides: "A majority of the judges of the county court shall constitute a quorum to do business; a single member may adjourn from day to day, and require the attendance of those absent, and when but two judges are sitting and they shall disagree in any matter submitted to them, the decision of the presiding judge at the time being, to be designated by the clerk of such court, shall stand as the judgment of the court."
There is no record of the county court authorizing the purchase of the materials. A county court is a court of record and speaks only through its records; verbal understandings with county judges are not valid. Boatright v. Saline County, 350 Mo. 945, 169 S.W.2d 371; Carter-Waters Corporation v. Buchanan County (Mo.), 129 S.W.2d 914 and cases cited.
Even though the county court made no record authorizing the purchase, the chemical company claims it is entitled to recover under Section 13768, which is: "If a claim against a county be for work and labor done, or material furnished in good faith by the claimant, under contract with the county authorities, or with any agent of the county lawfully authorized, the claimant, if he shall have fulfilled his contract, shall be entitled to recover the just value of such work, labor and material, though such authorities or agent may not, in making such contract, have pursued the form of proceedings prescribed by law."
This court has held that this section applies only where the parties have not followed the required form of procedure in executing a contract and that it affords no relief where the parties have failed to follow the conditions imposed upon the making of a contract. Scott v. St. Louis County, 341 Mo. 1084, 111 S.W.2d 186; Hillside Security Co. v. Minter et al., 300 Mo. 380, 254 S.W. 188.
The terms of the statute referring to a contract made with "the county authorities, or with any agent of the county lawfully authorized" do not permit recovery [737] on the orders signed by the presiding judge or the court house janitor because neither was authorized to make a contract. We have held that this section does not give the claimant a right to recover where he has performed under a contract with a county official if such official is not authorized by law to make the contract. Bryson v. Johnson County, 100 Mo. 76, 13 S.W. 239.
The case of Kansas City Sanitary Co. v. Laclede County, 307 Mo. 10, 269 S.W. 395 excludes from its ruling goods sold for use at the court house and alms farm. It is no support of the instant claim.
The judgment is reversed. All concur.