Opinion
33770.
DECIDED JANUARY 17, 1952.
Complaint; from Lumpkin Superior Court — Judge Edmondson. July 18, 1951.
Wheeler, Robinson Thurmond, for plaintiffs.
William Butt, Herman J. Spence, for defendants.
1. All contracts made by the authorities of a county, having charge of the management of its affairs, in behalf of the county, must be in writing and entered upon the minutes of such authorities. Therefore, where it affirmatively appears from the plaintiff's petition and the proffered amendment thereto that there was no such contract entered into and entered upon the minutes of the county authorities, the amendment was properly disallowed and the petition dismissed on demurrer.
2. Where an amendment is offered, amending the original petition, and adding a count thereto, and it appears that the original petition as amended set up no valid cause of action, there was nothing to amend by, and the amendment setting up a second count was properly disallowed and the petition dismissed.
( a) A new and different case from that made in the original petition cannot be added by amendment, and where the original petition seeks to allege a cause of action based on a contract between a county and the plaintiff's testator, an amendment adding a second count seeking to recover on an alleged cause of action arising out of the failure of the county authorities to comply with the duty imposed upon them under the Constitution to pay for private property taken for public use, the same being in the nature of a tort, was properly disallowed.
3. All claims against a county must be presented within 12 months after they accrue, and it appearing that this was not done, and that the testator was not laboring under any of the disabilities set out in the statute, the petition and amendment were fatally defective, and the court properly sustained the demurrers thereto and dismissed the same.
DECIDED JANUARY 17, 1952.
On September 12, 1950, John H. Moore and B. B. Fite, as executors of the estate of G. Hughes Moore, filed their petition in Lumpkin Superior Court against the Board of Commissioners of Roads and Revenues, composed of R. E. Baker, Ted Copeland and J. B. Pierce, and Lumpkin County, in which it was alleged that on or about November 25, 1947, the board of commissioners contracted and agreed with G. Hughes Moore to pay him a fair and reasonable value for said houses and other improvements on the right-of-way conveyed to said county by deed dated November 25, 1947; that said property was destroyed by said board sometime during 1948 or the early part of 1949; that said G. Hughes Moore conveyed the land on which said property was located to the State Highway Department upon the agreement and understanding with said board of commissioners that he would make no charge for the land but that he would be paid the reasonable value of the property referred to or any other property taken by the county for the purpose of constructing the highway; that property had a reasonable and fair value of $750; and that on or about April 3, 1950, the plaintiffs filed with said board of commissioners a written claiming that the county was liable to pay him said sum, which the defendants have failed and refused to pay. The plaintiffs prayed for judgment against the defendants in their official capacity and against the county for the sum sued for. Thereafter, the plaintiffs amended their petition and set up that the agreement referred to in the original petition was oral and formed the sole consideration for the execution of the deed conveying the right-of-way, a copy thereof being attached thereto; that at the time this agreement was made and deed executed the limits of the right-of-way had not been laid out marked on the record so as to indicate the actual right-of-way at all points, and it was not known just what buildings would be involved; that the buildings were not destroyed by the highway department until a considerable time after deed was made; that the destruction of said buildings continued through May, 1949; that said owner died testate on September 25, 1949, and the plaintiffs were qualified as executors of his estate on November 7, 1951, and within 12 months from the time the State Highway Department completed the destruction of said buildings the plaintiffs presented to the commissioners of roads and revenues their written claim for the damages caused by the removal and destruction of such buildings, a copy of same being attached as an exhibit; and that during his lifetime Moore went before the commissioners while the board was in actual session and presented orally his claim for damages for the destruction of said property and said board reiterated the agreement to pay him the reasonable value of said property and relying on said promise Moore did not make any written and further claim during his lifetime, and therefore, "defendants are now estopped from asserting the necessity of filing a written agreement within 12 months." The deed referred to provided that "in consideration of the benefit to my property by the construction or maintenance of said road, and in consideration of . . $1.00 . . in hand paid, I hereby grant," etc. No houses or other structures and property were referred to in this deed.
In said amendment the plaintiffs added count two to their original petition and set up the same facts as to the houses on said land and that same had a reasonable market value of $750 and that their testate had never been paid for the destruction thereof and setup that, as such executors, the basis of such claim was the provision of the State Constitution, as embodied in Code § 2-301 requiring that whenever private property is taken for public purposes the owner thereof shall be paid the reasonable value thereof.
The defendants filed their separate general and special demurrers and objections to the amendment to said petition and to certain paragraphs thereof and also demurred to said petition as amended, setting up that the contract sued on not being in writing, it could not be enforced; that there was no cause of action alleged against the county or the board of commissioners to recover on any contract; that it did not appear that the alleged contract had been entered upon the minutes of the board; that as to count 1 of the petition, prior to the amendment, it did not appear that there had been a written contract for the payment to the testator for said houses and personalty, and this count is an action on the contract, and by the amendment it appeared that this was an oral contract, not entered upon the minutes of the county commissioners, and there was no right in the plaintiffs to recover against the county thereon; that as to count 2, added by the amendment, same was an action under the provisions of the State Constitution to the effect that private property shall not be taken for public purposes without just compensation being first paid therefor to recover for the value of said houses and other property destroyed, and being ex delicto could not be added to or combined with the proceeding ex contractu; that there was nothing in the original petition to amend by; and that there was an effort to join a claim, arising out of and to enforce a contract to an action proceeding in tort for a failure of the defendants to pay just and reasonable compensation for private property taken or damaged.
The trial judge sustained the demurrers of the defendants to the plaintiffs' petition, as amended, and dismissed the same, and the case is in this court upon exception by the plaintiffs to such judgment.
1. All contracts entered into by the ordinary with other persons in behalf of the county shall be in writing and entered upon his minutes. Code, § 23-1701. If the fiscal affairs of the county are in charge of a board of commissioners the law applicable to ordinaries with respect to the management of county affairs governs. Wood v. Puritan Chemical Co., 178 Ga. 229 (2) ( 172 S.E. 557); Williams v. Sumter County, 151 Ga. 402 ( 107 S.E. 158). Unless there has been a full compliance with the statutory provisions relative to contracts with a county, which fact must appear from the plaintiffs' petition, and the petition is properly attacked by demurrer, the petition is subject to such demurrer. Graham v. Beacham, 189 Ga. 304 ( 5 S.E.2d 643); Killian v. Cherokee County, 169 Ga. 313 ( 150 S.E. 158). It does not appear that the contract, which appears from the amendment to have been parol, was placed upon the minutes of the county commissioners. It, therefore, affirmatively appears from the plaintiffs' petition that the contract sued on was not in writing and that the same had not been placed on the minutes of the commissioners. Therefore, such a contract cannot be enforced against the county and an action based thereon, the above appearing, is subject to demurrer. Sosebee v. Hall County, 50 Ga. App. 21 ( 177 S.E. 71). "The reducing of a contract to writing and the entering of such contract on the minutes of the authorities having in charge the financial affairs of the county is a condition precedent to the existence of a valid and enforceable contract against the county, and the petition should allege the performance of such a condition." Sosebee v. Hall County, supra.
The plaintiffs' petition fails to show any facts sufficient to take the contract out of the foregoing rule. The purpose of the rule is to protect the taxpayers against unauthorized and illegal contracts and expenditures of county funds. There was no estoppel on the part of the county commissioners.
2. It follows that the first count, as amended, failed to set up a cause of action against the defendants, the commissioners and the County of Lumpkin. It is proper to add by amendment a second count to a petition, but there must be in the pleadings already filed enough to amend by, that is, a valid cause of action must be set forth in the original petition. See Hooper v. City of Atlanta, 26 Ga. App. 221 ( 105 S.E. 723). Under the foregoing, the amendment, setting up facts to the effect that the defendants were liable to the plaintiffs' testate for the reasonable value of the property taken and destroyed by virtue of the provisions of the Constitution that private property shall not be taken for public purposes without just compensation being paid therefor, was not proper and the court did not err in sustaining the demurrer thereto and to the petition.
A new and different case from that made in the original petition cannot be added by amendment. Jones v. Robinson, 172 Ga. 746 (3) ( 158 S.E. 752). The cause of action sought to be added by the amendment as count 2 was not of a similar nature to that set out in count 1 of the petition, and could not be properly joined therewith. The action sought to be set out in count 1 was based upon the contract alleged to have been made between the deceased Moore and Lumpkin County, and the cause, which is set forth in the amendment offered as count 2 of the petition, is one sounding in tort. The first is based upon the alleged parol contract, not reduced to writing and entered on the minutes of the commissioners and the second is for damages by reason of the loss of certain property, based upon a failure of the county to pay the reasonable value of the property, which was taken for public purposes in violation of said Constitutional provision (Code, Ann., § 2-301).
The amendment and the petition were subject to the demurrers urged for the foregoing reasons.
There is nothing to the contrary of what is now held in the present case in the decision of this court in Washington County v. Sheppard, 46 Ga. App. 240 ( 167 S.E. 339). The questions involved therein are not involved here. The county is liable to be sued on a valid contract, even though there is no statute expressly authorizing the bringing of such an action for such purpose. This rule announced in the Sheppard case is not contrary to the present case which deals with the validity of the contract with the county where there is no compliance with the statute as to such contract being in writing and being entered upon the minutes of the county authorities, and as to the failure to present a claim against a county within 12 months. The same is true of the case of Decatur County v. Praytor c. Contracting Co., 163 Ga. 929 ( 137 S.E. 247), and similar cases.
This court does not rule here that, in a proper case, an action for damages will not lie under the constitutional provision prohibiting the taking or damaging of private property for public purposes; but simply that the alleged cause of action sought to be set forth under count 1 is based on a contract and that an action for damages under this constitutional provision for the taking or damaging of private property by the county, without paying therefor, is based on a tort and cannot be joined with the action ex contractu. Such cases as Bailey v. Miller County, 24 Ga. App. 746 ( 102 S.E. 178) and Butts County v. Jackson Banking Co., 129 Ga. 801 ( 60 S.E. 149), have no application under the rulings controlling in the present case.
There is nothing in the case of Lynch v. Harris County, 188 Ga. 651 ( 4 S.E.2d 573), and citations, relied on by the plaintiffs in error, conflicting with what we now hold. That case has no bearing on the question presented here and on which the present decision turns.
It follows that the trial judge properly sustained the demurrers of each of the defendants to the amendment and to the plaintiffs' petition, considering the profferred amendment, and properly disallowed such amendment and dismissed the petition.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.