Summary
holding that the oral contract between the board president and a private party was "void and that no valid contract was ever made" with the county
Summary of this case from Lefoldt v. Horne, L.L.P.Opinion
No. 38258.
February 25, 1952.
1. Counties — oral contracts.
A board of supervisors can contract and render the county liable only by a valid order duly entered on its minutes and all persons dealing with a board of supervisors are chargeable with knowledge of this law.
2. Counties — oral contracts — quantum meruit.
A county is not liable on a quantum meruit basis even though it may have made partial payments on a void contract, and there is no estoppel against the county on account thereof: So held where the president of the board without any order of the board rented barges which were used to protect a bridge and on which rental payments were made from time to time but not in full.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, Judge.
Morse Morse, for appellant.
I. A board of supervisors might lawfully lease one or more barges to be used as temporary supports for a sinking bridge belonging to the county. Sec. 8330 Code 1942; Mississippi Road Supply Co. v. Hester, 185 Miss. 839, 188 So. 281, 124 A.L.R. 547.
II. When in 1939 a member of a board of supervisors entered into an oral contract for the lease of barges to be used as temporary supports for a sinking span of a county-owned bridge, said oral contract was a lawful and valid exercise of the member's emergency powers, limited in its duration by the daily rental divided into the maximum amount to be expended by a single member of the board as provided by statute. Bigham v. Lee County, 184 Miss. 138, 185 So. 818; Smith County v. Everett, (Miss.), 8 So.2d 456; Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Simpson County v. Panther Oil Grease Co., 185 Miss. 506, 188 So. 566; Secs. 2917, 2924, 8335, 8337 Code 1942.
III. Following the initial oral contract, the appellee might have lawfully extended the contract with appellant without calling for bids through its emergency power to let contracts for an amount not in excess of Five Hundred Dollars. Sec. 8335 Code 1942.
IV. The order of the board seeking to ratify its action in hiring appellant's barges, if void, was not more void if it sought to bind the board taking office on January 1, 1940: and if valid was a lease from day to day which could have been terminated or accepted by the new board when it took office. City of Bay St. Louis v. Hancock County, 80 Miss. 364, 32 So.2d 54.
V. Where the board of supervisors legally came into the possession of appellant's property and made use of said property for a valid and legal purpose; and where there was an entire fairness in the dealings and the transaction was conducted throughout in the open in such a manner that any of the public within the county might at any time see or upon inquiry might know all that is or was going on about it; where earnest attempts were made to validate the actions of the board, which actions following the initial contract could have been legally done; and where the appellant made repeated demands for the return of its property, but instead was compensated for part of the period of use; the appellant is entitled to fair compensation for the remaining period during which the property was being used by the county, for the county's benefit. American LaFrance Inc. v. Philadelphia, 183 Miss. 207, 184 So. 620; Crump v. Board of Supervisors of Colfax County, 52 Miss. 107; Independent Paving Co. v. City of Bay St. Louis, 74 F.2d 901; Magee, Town of v. Wallett, 178 Miss. 629, 174 So. 246; Methodist-Episcopal Church of Vicksburg v. Aldermen of Vicksburg, 50 Miss. 601; 84 A.L.R. 936, 110 A.L.R. 153.
VI. The use of the appellant's barges without paying compensation is a taking of private property within the contemplation of section seventeen, Mississippi Constitution, and as such is compensable. Covington County v. Watts, 120 Miss. 428, 82 So. 309; Kwong v. Board of Miss. Levee Comm., 164 Miss. 250, 144 So. 693; Parker v. State Highway Comm., 173 Miss. 213, 162 So. 162; Quin v. Miss. Highway Comm., 194 Miss. 411, 11 So.2d 810; Rainey v. Hinds County, 78 Miss. 308, 28 So. 875; Smith v. Miss. Highway Comm., 183 Miss. 741, 184 So. 814; State Highway Comm. v. Mason, 192 Miss. 576, 4 So.2d 345; Tishomingo County v. McConville, 139 Miss. 589, 104 So. 452; White's Garage Inc. v. Town of Poplarville, 153 Miss. 683, 121 So. 295; Sec. 17, Const. 1890; Secs. 2932, 2955, 8316 Code 1942.
Jo Drake Arrington, for appellee.
I. The appellant's amendment in the form of a second count to its declaration stated a new cause of action which was barred by the statute of limitations. Secs. 722, 729 Code 1942; Clark v. Gulf, M. N.R. Co., 132 Miss. 627, 97 So. 185; I.C.R. Co. v. Wales, 177 Miss. 875, 171 So. 536; Travelers Ins. Co. v. Inman, 167 Miss. 288, 138 So. 339; Cox v. Freehold Land Mort. Co., 88 Miss. 88, 40 So. 739; 54 C.J.S., p. 321, Limitation of Actions; 34 Am. Jur., p. 211, Sec. 260 et seq. Limitation of Actions.
II. The appellant could not sue on both an express contract and an implied contract. Carter, et al. v. Collins, 151 Miss. 1, 117 So. 336 and citations therein; Upton v. Adcock, 145 Miss. 372, 110 So. 774.
III. A county is not liable under an implied contract or on quantum meruit. Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Amite County v. Mills, 138 Miss. 222, 102 Miss. 465, 737; Beall v. Warren County, 191 Miss. 470, 3 So.2d 839; Attala County v. Tractor Co., etc., 162 Miss. 564, 139 So. 628; Russell v. Copiah County, 153 Miss. 459, 121 So. 133; Groton Bridge Co. v. Warren County, 80 Miss. 215; Fitch, et al. v. Upshaw, 180 Miss. 298, 177 So. 57; Smith v. Covington County, 171 Miss. 879, 158 So. 919; Martin v. Newell, 198 Miss. 809, 23 So.2d 796; Jackson Equip. Co. v. Dunlop, 172 Miss. 752, 160 So. 734; Tullos v. Board Supervisors Smith County, 208 Miss. 705, 45 So.2d 349; Road Machinery Co. v. Webster County, 170 Miss. 601, 154 So. 723; University Motor Co. v. Newton County, 158 Miss. 873, 121 So. 133; Secs. 2917, 2924, 2935, 8330, 9027 Code 1942, and annotations thereunder; State v. Tingle, 103 Miss. 672, 60 So. 728; Deer Island Fish Oyster Co. v. First National Bank, 166 Miss. 162, 146 So. 116; Jackson v. Wallace, 189 Miss. 252, 196 So. 223; Dunn Construction Co. v. Craig, 191 Miss. 682, 3 So.2d 834; Cont. Ins. Co. v. Harrison County, 153 F.2d 671; Board of Supervisors v. Payne, 175 Miss. 12, 23, 166 So. 332; City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Peterman Construction Supply Co. v. Blumenfield, 156 Miss. 55, 125 So. 548; Newell Contracting Co. v. State Highway Comm., 195 Miss. 395, 15 So.2d 700; Lee County v. James, 178 Miss. 554, 174 So. 76.
IV. The appellant had no contract when it placed the barges under the bridge: Under the law Supervisor Nixon had no authority to contract for said barges, even in emergency. Simpson County v. Panther Oil Grease Co., 185 Miss. 506, 198 So. 566; Chap. 6, Laws 1931.
V. No emergency existed after the barges were placed under the bridge. Attala County v. Miss. Tractor Equip. Co., 162 Miss. 564, 139 So. 628; Bigham v. Lee County, 184 Miss. 138, 185 So. 818; State ex rel. Parks v. Tucei, 175 Miss. 216, 166 So. 370; State v. Board of Commrs. Howard County, 184 N.E. 780; 204 Ind. 484; Veix v. Sixth Ward Bldg. Loan Assn., 60 S.Ct. 792, 310 U.S. 32, 84 L.Ed. 1061; Brooklyn City R. Co. v. Whalen, 182 N YS. 283, 191 App. Div. 737.
The question presented for decision in this case is whether a county is liable in quantum meruit for rent on personal property when there is no valid contract with the board of supervisors for such rental.
The case was tried before the circuit judge without a jury upon an agreed statement of facts which discloses the following:
Harrison County is the owner of the d'Iberville Bridge across the Back Bay of Biloxi, a navigable body of water, which bridge is of steel and concrete construction and contains a draw span for the passage of navigation. On or about June 23, 1939, the piling supporting this draw span sank about eighteen inches, and on the named date the president of the board of supervisors, fearing that the draw span was in danger of falling into the bay, and assuming to act for the board of supervisors, rented two barges from appellant which were placed under and used as temporary supports for the draw span. One was a wooden barge for which there was an agreed rental of $12 per day plus towing charges, and the other was a steel barge for which there was an agreed rental of $15 per day plus towing charges. Subsequently, on August 11, 1939, it was decided that the wooden barge was inadequate, and, on request of the president of the board, appellant substituted a steel barge at an agreed rental of $15 per day plus towing charges. These barges remained under and supported the draw span until about September 11, 1940, when they were released to appellant.
On October 23, 1939, at a special meeting of the board of supervisors, the board undertook by an order entered upon its minutes to ratify the foregoing oral contract. It is conceded that this order is void and that no valid contract was ever made with appellant. From time to time the county made payments to appellant under the oral contract which aggregated approximately $12,250, and, if the county is liable, the balance due is $1,535 which is the amount sued for. In October 1939 and at various other times thereafter appellant orally requested release of the barges but these requests were refused.
On April 7, 1942, appellant brought suit for the said sum of $1,535 and based its right of recovery on the above mentioned minutes of the board of supervisors. For various reasons this suit was continued from term to term until the death of appellant's attorney. Appellant then engaged the services of another attorney who on January 17, 1951, filed an amended declaration consisting only of a second count which adopted all the allegations of the original declaration, averred that the rental claimed was reasonable, and that the county was liable for the reasonable rental value of the barges in the amount originally claimed. Upon the hearing the trial judge found against appellant and dismissed the suit.
Appellant relies primarily upon the case of Crump v. Board of Supervisors of Colfax County, 52 Miss. 107, and particularly upon the following sentence in the opinion therein: "But since the county enjoyed the use of these five rooms, and such accommodations were necessary, the county is liable for the use and occupation on the principle of the quantum valebant." An examination of that case shows, however, that the quoted sentence is pure dictum and wholly unnecessary for a decision of the question upon which the case was decided. We are pointed to no other decision in this State which follows the quoted statement with reference to liability of a county. Appellant does cite and rely on Independent Paving Company v. City of Bay St. Louis, 5 Cir., 74 F.2d 961, Town of Magee v. Mallett, 178 Miss. 629, 174 So. 246, and American-LaFrance, Inc., v. City of Philadelphia, 183 Miss. 207, 184 So. 620, but those cases all involved the question of liability of a municipality. Our laws pertaining to municipalities are so radically different from those governing proceedings of a board of supervisors that the cited decisions are no authority on the question here presented.
(Hn 1) It has been repeatedly held in this State that a board of supervisors can contract and render the county liable only by a valid order duly entered upon its minutes, that all persons dealing with a board of supervisors are chargeable with knowledge of this law, that (Hn 2) a county is not liable on a quantum meruit basis even though it may have made partial payments on a void oral contract, and, moreover, that in such case there is no estoppel against the county. Groton Bridge Manufacturing Company v. Board of Sup'rs of Warren County, 80 Miss. 214, 31 So. 711; Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Amite County v. Mills, 138 Miss. 222, 102 So. 465, 737; Attala County v. Mississippi Tractor Equipment Company, 162 Miss. 564, 139 So. 628; Russell v. Copiah County, 153 Miss. 459, 121 So. 133; Fitch v. Upshaw, 180 Miss. 298, 177 So. 57; Beall v. Board of Supervisors, Warren County, 191 Miss. 470, 3 So.2d 839; Tullos v. Board of Supervisors of Smith County, 208 Miss. 705, 45 So.2d 349. Numerous other cases supporting these views are cited in the foregoing authorities, and we are of the opinion that the public interest requires adherence thereto, notwithstanding the fact that in some instances the rule may work an apparent injustice. The judgment of the lower court is accordingly affirmed.
Affirmed.
Roberds, Lee, Kyle and Ethridge, JJ., concur.