Opinion
No. 33116.
March 28, 1938.
1. COUNTIES.
The president of a county board of supervisors was without authority to bind county by contract for purchase of grease for county's use.
2. OFFICERS.
A public official is not liable on contracts made by him, as such, in good faith, unless he has used apt words to bind himself or has expressly pledged his personal responsibility or unless the credit was extended to him personally.
3. COUNTIES.
The president of a county board of supervisors who in good faith, but in erroneous belief that he had authority to contract therefor on behalf of county, agreed to purchase grease on behalf of county, which subsequently rejected the order, was not personally liable for the purchase price, although he retained possession of the grease under agreement with the seller's agent who intended to sell the grease and make shipments directly from that point.
APPEAL from the circuit court of Hancock county. HON.W.A. WHITE, Judge.
Gex Gex and E.J. Gex, all of Bay St. Louis, for appellant.
The sole question for determination here as we see it is whether or not the appellant could be held individually liable, on a contract, executed by him, for and on behalf of the county, where the county under any circumstances could not be held liable therefor. Undoubtedly the county was not liable. Sections 239 and 6064 of the Code of 1930 set out strictly how a county may become liable for purchases made or contracts entered into. Without a strict compliance with the provisions of those two statutes, the county is not liable.
American Disinfecting Co. v. Oktibeha Co., 110 So. 869; Franklin County v. American Disinfectant Co., 121 So. 271; Lee County v. James, 174 So. 76; Merchants Bank Trust Co. v. Scott County, 145 So. 908.
There is no better settled principal of law than that where an agent at the time of the making of a contract discloses the name of his principal, the agent will not be held personally liable for the default of his principal. In the second place, where the principal itself lacked authority to perform the contract made on its behalf by the agent, although it might have undertaken to authorize the agent to so act, the act of the principal being ultra vires, or void, the agent is not individually liable for the nonperformance thereof.
Grubbs v. Wiley, 9 S. M. 29; Packet Co. v. Streuby, 91 Miss. 211; Copes v. Matthews, 10 S. M. 398; Story on Agency, 310.
It is a well established rule of law that the object of the pleadings is to inform the parties of what they might expect to be confronted with at the trial. Certainly this was not done in this case because the appellant was advised that he was jointly liable with the other co-defendants, and, therefore, was liable jointly, but a judgment was permitted to be entered on proof to the effect that the appellant had exceeded his authority as a public officer and was, therefore, individually liable.
28 Am. Eng. Cyc. 58; Boardman v. Griffin, 52 Ind. 100; Gamble v. Kellum, 12 So. 82; Lee v. Wimberly, 15 So. 444.
Cobb v. Keith, 18 So. 325, was an action on an insurance policy where plaintiff alleged liability against two persons jointly and proof showed liability against one. It was held that the plaintiff could not recover because of the variance between the allegations and the proof.
McAnally v. Hawkins Lbr. Co., 19 So. 417; Garrison v. Hawkins Lbr. Co., 20 So. 427; Redmond Co. v. Louisville Nashville R.R. Co., 45 So. 649.
If the appellee intended to hold the appellant liable because of exceeding its authority he should have been sued in that manner and the facts given to him.
46 C.J. 1048, sec. 340; 21 R.C.L. 608, sec. 152.
We therefore submit that under the facts in this case a peremptory instruction should have been given in favor of appellant for two reasons: First, that if the theory on which plaintiff was allowed to recover, was that appellant as agent, exceeded his authority as such, and therefore was individually liable, then the proof on which plaintiff relied was a variance from the allegations of the declaration to which objection was duly made, and which was not therefore cured by a verdict; and second, that all the proof showed that appellee dealt with appellee strictly as a representative of the board of supervisors, and not as an individual, and where the contract with the board was void, as is clearly uncontradicted, no recovery at all could be had.
Doty Doty, of Biloxi, for appellee.
Appellee's theory of the case was and is now that the appellant exceeded his authority and having exceeded his authority and kept the goods in his possession for more than twelve months without any attempt to return them or to advise appellee that he was without authority to make the contract for the board of supervisors and the goods purchased by him was subject to their order and the same would be returned if none of the goods had been used. If they had been used then the portion that had not been used should have been returned. The failure of the appellant to do this made him liable even after the goods were purchased if he was not liable at the time of the purchase. The latter we do not concede as we contend that the appellant was liable for the price of the goods from the date of the contract and the receipt by him of the goods mentioned in the contract.
Appellee's contention is that the appellant waived his exemption and immunity and became responsible to the appellee for the purchase price of the goods sold and delivered. The court took the position that the appellant knew the requirements of the law in the purchase of goods and materials for the county, and exceeded his authority in purchasing same and thereby rendered himself liable individually. No joint liability existed as against the other members of the board of supervisors. The proof in this case was sufficient for the court to render the judgment against the appellant.
If there was any defect in the declaration, as a matter of law, the appellant should have demurred. His failure to do so waived the defects complained of. It is now too late to raise legal questions or issues of fact in this court.
The appellee sued Hancock county and the members of the Board of Supervisors thereon by a declaration alleging that, "on the 12th day of December, 1935, and on the 29th day of June, 1935, the plaintiffs sold and delivered to the defendants, at their special instance and request, and upon their signed orders, greases to the amount of $321.30. Itemized statements, with the signed orders attached, properly sworn to, are attached hereto, and made exhibits A, B, and C, and D, and made a part of this declaration."
The exhibits referred to in the declaration are written orders to the appellee for grease, signed "Hancock County, C.B. Murphy, Supervisor." The affidavits on behalf of the appellee attached thereto set forth "that the articles furnished and services rendered therein charged have been actually and necessarily furnished and rendered to and for said county, and that the same has not been paid, nor any part thereof."
The evidence discloses that these orders were given to a salesman of the appellee by Charles B. Murphy, a member, and president, of the Board of Supervisors of Hancock county, with the knowledge of the salesman, for and on behalf of Hancock county. The grease was shipped to the county, and by it rejected. It remained in the possession of Murphy, to whom it had been delivered, on an agreement of the appellee's salesman, whose authority to make it is not here challenged, that he would "come to my place and take the grease up, and try to make a sale of it, and ship it direct from that point." This the salesman failed to do. Murphy was without authority, under the governing statute, to bind the county by this contract.
As the close of the evidence the court directed the jury to return a verdict for the county, and for the other defendants, except Charles B. Murphy. It refused to direct a verdict for Murphy, but directed a verdict against him, and erred in so doing. A public official is not liable on contracts made by him, as such, in good faith, unless "he has used apt words to bind himself, or has expressly pledged his personal responsibility, or in which the credit was given to him personally." Mechem on Public Officers, section 816; Copes v. Matthews, 10 Smedes M. 398. None of these exceptions are presented by this record. But it is said by counsel for the appellee that Murphy retained possession of the grease, and thereby became liable to the appellee therefor. This possession was explained, and appears to have been with the consent of the appellee, knowing that payment would not be made therefor by Hancock county.
Reversed and judgment here for the appellant.