*1 County Amite Syllabus. [138 recognized and definite article of make established and the evidence fails to show that trade-name, be on the and we not think seller, relied do implied under there was an that, warranty the facts this record, part on the the dealer that scales in question Consequently, were accurate. the decree of the court below will be will be reversed, decree appellant fifty- here for the three hundred for the sum of seventy-five four dollars and the amount admitted cents appellee goods, to be for and merchan- due wares, purchased appellant. dise from the appellant. decree
Reversed and for County v. Mills.* 23750.] So. 465. No. (In 12, 1925.) Banc. Jan. Highways. engi- Road construction contract held void because of
1. same, report neer’s to make estimate as re- cost and failure quired by statute. Heming- 5, chapter 176, (section 7162,
Under Laws of 1914 way’s Code), engineer employed necessary is that an be constructing maintaining make an estimate of the cost of highway highways improved, be that such estimate thereof, approximate cost embrace the work be done roa,d survey approved com- and that this supervisors, and be entеred missioners and the board of supervisors, before a the minutes of the board of valid contract work, and where there is a failure to com- can be made for such ply under the statute a contract made said law with the terms of void, is not liable for the work and the board of improvements made. or the done quantum County Highways. not liable on meruit basis held for contract. done under void road construction work quantum meruit basis for construc- A liable on a not chapter 145, Laws under tion of authorized roads v. Mills. Code, by chapter 176, (Hemingway’s sec- amended Laws of performed inclusive), a сon- tions work under having preliminary' *2 tract made and estimate without engineer. A an can bound a contract supervisors upon showing of board a minutes of entered compliance chapters. mandatory provisions such with the of 913, County Mangum, cited. Smith 89 So. 127 J., dissenting orally. J., dissenting and Holden, Anderson, suggestion oe error. (Feb. 1925.)
Appeal sustaining overriding suggestion error, or of and Error. After filed,. suggestion no he can error of further rendering supreme suggestion erred in court After sustained, been reversal has or either affirmance or suggestion overruled, in that of error can be filed no further parties any of the thereto. cause J., 347; Highways, Highways, J., 2. 29 29 C. section C. 1. *Headnotes Anno). (1926 section Error, J., Appeal 2477. C. section 1. *Headnote county. chancery Amite from Appeal Chancellor. R. Hon. W. Cutler, county. Judg- against Mills W. P. Action appeals. plaintiff, defendant Reversed for ment judgment rendered. appellant.
George for G. Gordon, T. Butter and Mills cannot sue void, is The contract engineer employed by the commis- upon it, because survey lay not make an the roads did out sion maintaining constructing the cost estimate of survey separate by the mile covered highways for each report to the commissioners, such estimate not and did survey adopt such es- did not commissioners report the same and did not timates spread the board and the the minutes same adopting not make did v. Mills. for Brief [138 Miss. provided by estimates 176, Laws of operating under which the in connec- regard tion with these Their roads. failure ren- absolutely point this contract ders null and void. This adjudicated expressly case EUis v. Tillman, provision The wisdom of this in the statute, and we say might necessity, clearly absolute demonstrated in this case. The paid record shows that Mills has been approximately yards grad- seven thousand cubic ing done on the road in Gloster excess amount required grade cross section notes showed was making twenty- he claim road, and for an additional yards eight thousand hundred ten six cubic for maintain- thirty-five or a total of road, Gloster thousand six *3 yards on hundred ten cubic the Gloster road, more than required grade the cross section notes showed was to road. that complainant claiming’approximately is
Moreover, four- yards grading cubic more for teen thousand on. the Me- Comb road than cross section notes extras eight showed, allowed Stowell thousand and yards fifty-seven cubic additional fоr maintenance of road bed the McOomb road. perhaps it point And in is well this connection to out section notes on Gloster road that cross were prior actually that to the Mills trial; lost was allowed yards cubic more on the road seven hundred Gloster than required grade cross showed it to section notes that yards approximately twelve thousand cubic road, Whereas, more than Kramer’s estimate showed. of the McComb Kramer’s road, showed thirty-one quantity thousand six hundred estimated grade graded. yards road as far as it that was cubic to grading that actual cross section showed *4 of the board.” minutes Mangum, it said:
In Go. v. 89 So. “Sec- 913, Smith Hemingway’s tion Code of Section 361, 1906; 3734, Code, provides be contracts of' character shall how this repeatedly by by the board. It been held court has speak supervisors only that can act and the of board through upon through orders entered is, its minutes;,that its minutes.” Supervisors Grump In the of v. Board Gol- case of of only that: “It can enter 52 Miss. stated Co., 107,
fax 138 Miss. —15. by express assent in thereto, its some an
into on its minutes.” other, form or Supervisors Again, of Board Benton in of of upon 54 Miss. the court al., 240, et v. Patrick, Go. approval Grump supra, question case, cites with following: “If the contractors or adds commis- authority necessary, thought the alterations sioners ought have from board, been make them obtained to. by record.” manifested its and its consent Supervisors Clay Bridges Go., Bill v. Board In é of of spealdng of a similar is there contract, Miss. 817, '58 supervisors bind counties that: “Boards held range authority, acting of their and in within the when pointed by out the statutes. Their mode and manner by minutes, the entries on their are contracts evidenced more, by proof members no varied and can be though they speak, knew those with whom failed purport dealing they of what misunderstood’ the were they thеy and established doing, can be created than were an affirmative act board It takes alone. silence authority scope entry evidenced of its within the a when contract, and to bind the minutes its any more is not to be varied, made, thus portion mere silence than created, ’’ of others. mistaken assertions and the 25 So. 76 Miss. Co., Dixon In v. Greene only express says contract made “The that: order on minutes, its be found the board was part specifications thereof made a plans and ’’ reference. question discussing the court Groton Go. same says County, that: 31 So. v. Warren may by or contract, new “The board by original ratifica-' contract, of its an amendment open of the board (all acts which must tion minutes) spread bind session, parties And contract- pay named. the cases each *5 County 227 v. Milus. 138 charged knowledge are with counties with the of statute.”
this doctrine is This reiterated the case of Marion Go. - following v. 83 36 Foxioorth, 677, Sok 36, language: “Such like all contracts, other contracts made supervisors, hoards must be evidenced orders duly papers on their or minutes, in such or- part a ders referred to and made thereof.” Gilchrist-Fordney Keyes, To the same effeсt are Go. v. 113 Tally 74 and Lamar 619, So. Go. v. 742, & May So. son, Miss. 588, Under these author- supervisors it is that the manifest board of ities aof only express county can enter into an an spread upon and that there minutes, can be thing no such as verbal oral order of this board. relhting two sections of. the Code contracts character are sections 369, 1906; Code Hemingway’s 3734 and 3742, sections Code. The first provides public how contracts for work are made; the of this shall second, contracts kind not be made except in certain cases vacation, therein stated. This section Code of 1892. In latter sеction appellant County, supra, the Go. Warren Groton v. quantum attempting to hold the liable on there holding meruit basis. could be no recovery opinion in the that such it is stated lia- implied bility on an contract will not attach where an contemplated by citing express statute, plain Again “It it is said that: from authorities. subject-matter to the cannot, this that cov- implied by be bound contract. ered entirely Very purpose off statute was cut any extra work done materials fraudulent claims lor the board ex- limits furnished, press respect subject-matter to the embraced contracts in pоinted out.” in the mode made statute, equal applies to contracts force reason
This with ITeming- 1906; section under section Code of *6 Brief for express
way’s only Under of these sections Code. both recovery contemplated, and no are therefore, contracts implied of an under claim contract. there- It, be had can appellee cannot on follows that the recover a fore, quantum meruit basis. Douglas, In Sawmill Go. So. 1023, ‘‘ by The board of cannot be bound is said:
agreements even character, if the in- made members of the because the board can board, dividual upon entered itself an order minutes bind legal оf the board.” at session a Keyes, supra, ordney v. it is said: “In In Gilchrist-F judgment, the deed executed the individual mem- our supervisors, unsupported pre- a of the board bers upon nullity. a entered minutes, cedent court in its not certain decree did not areWe recovery quantum permit the basis of as meruit, on complaint. sought The reason we the amended bill of say because in the order of reference the court this is ren- master to find the value of services directed the directed, contractor, master, dered recovery finding. the court did allow a If this theory (and theory it could we see nо other allowed) it was error. then manifest have been years paany in this state that a for been settled It has implied contract and is not be bound cannot prescribed qu-antum meruit where method liable for complied This making with. is defi- not contract is supra; nitely Lamar Go., in Groton v. Warren decided Tally supra; d^Mayson, Mangum, v.Go. Smith v. Go. supra. supra; other cases, respectfully should be re- this case submit We appellant. for entered versed appellee. for Price <&Price, part and makes calls for in this The contract special thereto, attachment reference and thereof, v. Muios. Appellee. following 1. Notice to contractor; matters: -2. Instruc- proposal 3. The 4. The bidders; contract; tions specifications; plan The 5. bond contract; 6. prices given proposal; 7. The the work; requirements Highway En- of the Commission provides gineer, and contract further that Mills had Highway into a contract Commission with an- in full accordance with Laws of part are to and made a of the contract. All nine nexed chancery on file clerk of recited office Mississippi, engineers county, em- with *7 things ployed Doing by all the commission. contem- by part рlated plans specifications, form a the and special and shall maintain work aá»con- of templated by Highway Commission. by things
These ten are said contract and part to made a and annexed of record bond, contract were then when this and bond contract, bond everything they them referred carried with recorded ought by part operation law. made a of This thereof that certain be an the contentions forever to things, end to adopting and esti- to-wit: The provided in Laws as section mate, spread upon never ordered were filed, filed, were of the vitiatе the order minutes of the would board, contract. Foanoorth,
In Marion Go. v. supervisors award- “That orders the board said: writing, to a may reference a contract make be- approved by and executed its the board read writing of a president, constitute the half although' part recorded on it is not the record, minutes of the board.” engineer esti- argues not make that did
Counsel each maintenance of the cost of construction and mate proper say, separate that under a mile of the road. We place it In the first he did. of this record construction main- rеcord Mills constructed is shown Amite Coinsmr Mills.- ' Appellee. eighteen tamed the road from twelve constant- months, ly waiting temper on the whims, faithless conduct engineer of an at a fearful and ex- unwarranted pense, given nothing has been Mills for maintenance, in the court decree. required grading
The total on this road cross eight eighty-seven notes and four thousand hundred yards cubic allowed extra, as claimed Stowell, including counsel in his brief, and the two thousand three forty-five yards put up hundred cubic Ball and Jen- nings quit thirty-three after Mills amounted to work, eighty-five yards. thousand four hundred cubic This yards would leave forty fоur thousand hundred six cubic put evidently into Mills maintenance and which far excess maintenance for this and no item, surprise county. harm or would result to the part The contract states that the bid is for a contract. if Then, we refer to and correct the illustra- presented
tion page the able brief on of counsel three, by inserting easy therein the bid and make the 'calcula- provided approved by tions for and this court Marion following supra, Co. v. Foxworth, we would have quantities for one mile on the McComb road estimated engineer page 112 of record: *8 yds. per
Embankment, 2785 cu. @ cu. 26%# yd.........................!........(cid:127) $783.02 Clearing grubbing acres @ 2/10 per $85.00 acre 102.00 ..'................... Moving per fence 12 @ rods rod...... 3.00 25# Culverts 25'-24" @ .................. 21.25 85# Mining .loading yds. 1636 cu. @ .... 294.48 18# Spreading machining yds. @ 1636cu. 294.48 18# Hauling yds. 1636 cu. 1 mile 654.40 @ 40#........ Sub-grading sq. yds per sq. yd. 257.60 .@ 3%# plans specifications great are made detail really precise. and are not indefinite but are , pass- In Ellis v. 125 Miss. was Tillman, ing upon agreement a case counsel, made Appellee. 138 Miss.] agreement provided That board First, minutes of — engineer’s any estimates cost did not show .con- That the Second, Not here. struction of the road. so, any approving not members of the did board show any engineers. here. Not so, that not That the of the board show minutes did Third, any thе commission was into between of the road but contractor for the construction taken the board re- that no action was whatsoever except lating working road that to the contract single an order that there 5ne was was item, showing this road had on the minutes board here. This not been But, so, selected to be worked. through speaking that the com- said court, Justice Cook, authority into a contract enter mission was without something injunction proper more until that the was spent. There were sev- money been done. No was had apply why not here. eral that case does reasons county Copiah county everything that the has done had failed to and more. do, en- sometimes contracts
There are different kinds of beyond supervisors, it is where tered into boards of scope sub- authority about such to contract of their spe- ject-matter. contracts, classes There are other county rati- implied, and thereafter acts cial or where ratification, by methods fies such contracts various wherein of contract third kind there still a subject-mat- authority about such has illegal, and while we yet, contract that ter and makes a pre- necеssary everything done contend there requisite entering that it was within a contract into that the power about and to contract of the board yet, every should' perfectly legal sense, contract subject, the court’s call any we there on this doubt holding munici- that void attention to authorities those estop the existing pal conditions, may, under contracts, setting up contentions. from *9 Ct, , v. Mills. Appellee. of evidence applicable rules and the rules of law ordinary applicable municipal contracts are con- tracts, and while neither instance can a contract by parole yet, Cyc. be varied in 6 evidence, it is said: building “Where construction inis testimony showing existing doubt, the facts at the time of the execution of the contract and circumstances parties is admissible.” Irregular, Defectively In 7 R. L.C. Executed general Illegal principle Contracts, is of almost —“It application county power
universal whenever has originally particular thing, to do a power it, also, has the ratify attempted to thing, make an valid effort to do such
although may the same defectively, have been done informally, Upon fraudulently, and even in the first instance.” strength principle municipal corpora- of this estopped denying tions have been liability from in their pay for benefits some received, where cases there was no at all, even cases where there was an power absence of to make the contract. Where a receives and substantial benefits under retains a con- tract authorized to but make, which was irregularly because executed, void liable in an ac- brought tion recover the reasonable value of the bene- fits received. Hutchinson etc. v. Board Com’rs Kingman Rep. Am. Co., St. 15 L. R. 273; A. 401; L. 1915-A R. A. 989; Marion Water Co. v. Marion, N. L. Iowa, 321, 96 W. 1915A R. A. 883; 1002; Natchez Mattery, v. 54 Miss. Dexter' 499; Hitchcock & J. W. Byrnes 659; 96 U. Mt. Galveston, v. S. Vernon et al. Berry, Eng. Am. & State ex rel. Ann. Ohio, Cas. 399. If there where the books chancellor’s findings on the facts should be we sustained, assert with confidence that this that case. opinion J., of the court. delivered
Ethridge, appellee, chancery filed a bill Mills, against to recover amount he claimed *10 County Mills, v. Opinion 13-8 Court. the county the him was due under a road construction con- county denying tract. The alle- answered, the material gations the an bill. Later Mills amended bill filed county sought quan- which a he to recover from the on meruit tum fоr the work done. The material alle- basis gations county. of the amended bill the were denied against county A decree was the in favor rendered of the plaintiff sixty-four for nine thousand dol- hundred two thirty-three ap- judgment from lars and peal cents which prosecuted. day re- cause on former considered and This for and rendered the versed court, suggestion being judg- county, the of error but filed opinion the the and cause aside, withdrawn, ment was set argument for before court banc and remanded the court de novo. been considered banc has understanding necessary,to con- an Thе facts chapter Proceeding troversy under 145, are as follows: chapter of 1914 Laws 1912, 176, as amended Laws inclusive), (Hemingway’s sections Code, county certain contract for the construction let being appellee, county, public Mills, roads awarded to him, bidder the contract was and best lowest years spend in the construction or three he two alleged and received contract, covered the roads payments progressed. time to time as work from controversy Mills contended that the arose, Later county he abandoned contract, had breached perform county another contractor had work, public county contended roads. on said the work let and, as above stated, the contract breached that Mills man. to another here, below, in the contended alleged between the road construction chapter because, under is void, Mills Code), Hemingway’s (section under of 1914 Laws proceeding, supervisors the board of engineer of the cost failed make Opinion of the Court. [138 Miss. highways construction and maintenance of the therein survey, mile embraced each covered such report failed to and еstimate to the road required by commissioners as was said statute, and that making filing of such estimate and thereof with and approval by road commissioners the board of requirement mandatory awas essential to *11 validity of the contract. following copy is a of the estimate made engineer one for mile one of of the roads embraced, and example survey an exact is of the character of and esti- every mate of gineer mile of the roads to be built which the en- approved by and which was made, the road com- supervisors: missioners and the board of 2,955 yds. ........ Embankment cu. Clearing grubbing and 2.4 acres Moving fence ........ .17 rods Culvertp ............ Bridges ............. ................... 1-30 loading... Mining ...........1,043 yds. and cu. Spreading rolling ...........1,043 yds. and cu. Subgrading ..........4,693 sq. yds. ......... l’,043 Hauling yds. cu. ............. miles. —2 survey so made and the estimate so made engineer any not contain do of the cost of the estimate separate separate each or either for for mile, work each but whole, link as a is estimate the work re- quired done. be to
It the contention of this estimate is making wholly that the and insufficient, filing approval by road commissioners validity and board of essential statute the contract under the above referred to, and rely 88 Tillman, Ellis v. 125 Miss. So. court considered this stаtute, that case the held mandatory, quoting page statute to be from the at 282) Mississippi Reports (88 So. as follows: v. Opinion of the Court. subject duty commissioners, “It shall he such approval supervisors, to of the board of determine or con- shall constructed what road*or roads fix or district maintained or maintained structed and such proceeds of such bonds of the sale districts out of duty levy be their taxes; of such shall con- or for construction, to let all contracts for of such or for the maintenance struction and maintenance letting provided for in the manner law roads now supеrvisors; public the board of contracts work competent engineer employ duty and it shall be their lay survey or in such district road roads out such duty upon, they determine whose or shall districts, cost of construct- make an estimate of the it shall be to highway highways maintaining for each or such report survey, separate such mile covered such con- before to said and estimate commissioners for the construction the construction tracts are let for or. highways; highway and maintenance survey have the shall commissioners and estimate said *12 reject power adopt to havе latter event and in the to or duty adopted, their it shall made; another and when supervisors, report whose board the same the the duty board the clerk of said file be to order shall spread among and office, same the records an order and make of the board same on the minutes reported and adopting so. and estimate such adbpted of said which acts all of commissioners; such rejec- subject ratification to the to be commissioners supervisors.” board of tion mandatory, the en- being the failure
The statute reported gineer made cost estimate of thе to have the and and the approved by commissioners the road to and spread supervisors, minutes, required void. the contract renders statute, be- void if the that,
It next contended and have to make said cause of such failure approved required neverthe- statute, fin the manner County v. Dissenting Opinion. [138 Miss. appellee, Mills, less the work should be allowed recover for
actually quantum done on meruit basis; that' county having acquiesced being in the work done, having partial payments pro- as the. work gressed, implied makes anit contract, hav- having recognized the road used cоnstructed, so through supervisors by making the contract its board of payments, escape liability cannot now because of - the failure to file the estimates and them have upon the records. opinion
In our contention cannot be maintained, litigation case is and this controlled that branch of the Mangum, Smith v. So. being and the authorities referred to in that case. This appellee recovery, judg- had no basis for true, judgment ment of the court below must be reversed, appellant. rendered here
Reversed, here. dissenting opinion. with J., Anderson, J., orally. Holden, dissenting (dissenting). J. a member of As Division Andеrson, joined A of this court, I the reversal of this case be impelled authority cause I felt so to do on the of Smit h County Mangum, v. 127 Miss. So. willing
I not then to overrule. After reconsidera suggestion tion- of the case court en banc on Mangum have error, I reached the conclusion that the ought case is unsound and to be mischievous, over ruled. my judgment Crump Cotmty, 52 Miss. Colfax expressly
107, which has never been overruled, *13 Mangum squarely Crump case in are conflict. implied county held that a liable on an was contract for the reasonable value of benefits received it virtue of a void contract. In that case contract under сon- Dissenting Opinion. 138 Miss.] was which the was authorized
sideration one was, The contract held void because it was not make. county by into order entered on the minutes supervisors. subject-matter in of the contract the case involved under counties, at one about which bar is words, contract. In other Laws of are authorized to pursued statute in reference had if Amite have been valid. The su- contract would thereto, preme court of the United States courts of last many have held where a states, that, resort of county benefits under retains receives and substantial authorized to mаke but which was which was defectively it is liable on an im- executed, void because plied promise value of the for the reasonable benefits 22; C. J. 559, 560, 7 R. L. section received. C. in cases notes. Appellee completed his accord- and, almost contract, ing of the court which is sus- below, to the so had he not would have done evidence, tained by appellant. illegally prevented more For than a been year engaged performance. Dur- he a half its monthly en- were rendered time estimates appellant gineer charge, payments un- contract. In this manner fact, the terms der paid appellee appellant it had more than claimed that price. Appellant hands, had as re- the tained belonging appellee percentage to five hundred under six thousand dollars. Un- about contract, question brought appellee not a was ever suit til validity appellant of the contract. as to raised appellant brought for the time, first then, After suit and .that, therefore, contract was void contended principles nothing. appellee laid it owed Under appellant majority opinion can not re- down in agreed аppellee, pay but can sue and re- tain what every paid him him under the back from dollar cover appellant right has the words, contract. other *14 et al. Huber v. Freret
Syllabus. keep appellee’s the fruits of labor and materials; it has right keep use roads he built, 'and also price it'agreed pay him therefor. say good justice
I morals and even-handed demand appellant pay appellee should value reasonable of the benefits received it. Mangum go overrule the
We should
case,
back to
Crump case.
Per Curiam: —This cause was
submitted
Division
present
day
judgment
A a formеr
on
term and the
of the court
sugges-
below was reversed. Thereafter, a
appellee,
tion of error was filed
counsel for the
judgment
of reversal was set aside and the case was
remanded to the docket for submission to the court iii
day
banc; and on later
of the court below
again
the court in
banc
reversed and the cause
appellee
dismissed.
Huber 24271.] 3. [103 So. No.
(Division Suggestion Jan. B. 1925. of Error March Overruled 1925.) patent State land commissioner cannot issue Public Lands. surveyed public urban into business lots. lands (section 5254, Hemingway’s Code), Code of Under section public the entire connection with Code construed given authority lands, no the land commissioner to issue a The notes completed complete far as it was road yards, twenty-eight hundred five cubic thousand six required yardage total to com- master found - v. Mills. píete finally completed only road as it was thirty- eighty-five three thousand, four yards, hundred cubic eight eighty included four thousand hundred cubic yards extra allowed under or about Stowell, two thou- original sand more than Kramer’s estimate. very purpose statute' towas enable the represented taxpayers know what it cost to construct each mile of each road proposed they might ju- built, so that exercise a determining discretion in they dicious whether or not would undertake the work. long courts state have since settled the proposition except that a cannot be bound in the provided manner 'for the statute, and an order upon entered minutes. Holmes Go. Burton Con- struction 267 Fed. Go., it said: “We think it general proposition can be stated as law, public body can be bound to the extent and Within regularly the limitations which its constituted author- ities have bound it. Text books and cases are uniform point, on that needs no citation of authorities to support rights spring the rule that no contractual can against except municipality in strict accordance with corollary equally the law, well established, municipality that a act must entered on its having minutes with reference its contract, and, con- obligation no'additional can tracted, burden be im- posed upon except duly an order