157 Ga. 595 | Ga. | 1924
The MacDougald Construction Company, a corporation, instituted an action for mandamus .against the Board of Commissioners of Morgan County, to require them to enter upon their minutes two written contracts alleged to have been entered into between the plaintiff and the County of Morgan, the latter acting through a former board of county commissioners, of whom the present board are successors. Paragraph 3 of the petition was as follows: “That on the 4th day of March, 1920, petitioner entered into^ a written contract with the said County of Morgan, which was executed on the part of the said County of Morgan by W. H. Kimbrough Jr., then chairman of the Board of County Commissioners of said county, in pursuance of authority and resolution authorizing him to execute it for and on beh'alf of said County of Morgan by the county commissioners of said county then in office, and by plaintiff, through its president, Alex. MacDougald, and was witnessed by 0. H. Baldwin, clerk of the superior court of Morgan County, and approved by the Highway Department of Georgia, through and by W. B. Neel, State highway engineer. That said contract was for the furnishing and delivering of material and to do and perform the work required in and about the improvement and construction of 6.73 miles of paved road known as the National Highway Federal Aid Project No. 70, same to be 16 feet wide of concrete, as per specifications; and that the said county in said contract agreed and promised to pay to the petitioner for said work
Paragraph 4 alleged that each of the written contracts was entered into by the plaintiff in good faith and is legally binding upon the county; and that it was the duty of the commissioners of the county, in office at the date of the contracts, to cause them to be entered upon their minutes as contracts in respect of county business. Paragraph 5 alleged that the county commissioners failed to enter the contracts on the minutes of the board, and that they
A demurrer was filed to the petition on the ground that the written contracts were not set out in the petition nor a copy attached. Several paragraphs of the petition were demurred to on the grounds above stated, and the further grounds: (a) that the alleged written authority of W. H. Kimbrough Jr. to execute the contract was not set forth; (6) that the alleged approval of W. E. Neel, State highway engineer, is not set out; (c) the reference to the proposed project Number 70 of the length of 6.73 miles and as project Number S-8-4 of length 2.127 miles or part of former project number 110 is unintelligible; (d) that the allegations were mere conclusions; (e) that the allegations are irrelevant, vague, and uncertain; (/), (g) that the maps, profiles, specifications, and contract therein referred to are not set out; (h) that certain allegations thereof were merely statements of a conclusion. The defendant filed also an answer which referred to the several paragraphs of the petition substantially as follows: One and two were admitted; three was admitted in part and in part neither admitted nor denied, due to inability on account of lack of information, the allegations not answered for such reason being those relating to the execution of the contracts by Kimbrough and his authority to execute them, the authority of Neel to approve the contracts, and the data set out as to the project and length of the improvement, building of the road according to specifications; four and seven were denied; five was admitted except so much thereof as
It has been held that section 386 of the Civil Code of 1910, which was section 343 of the Political Code of 1895, requires that every contract made with a county shall be in writing and entered on the minutes of the officers entrusted with county matters; and that “a person who has made a valid written contract with the county authorities has a legal right, though he may be a nonresident of the State, to have the contract entered on such minutes;” and “if the proper county authorities fail or refuse to make the entry, the judge of the superior court should by mandamus, when no issue of fact is involved,- compel them to do so. ” Milburn v. Commissioners of Glynn County, 112 Ga. 160 (37 S. E. 178). After the above case was decided, a county entered into a written contract with a contractor to construct a county court-house. The ordinary, being the officer entrusted by law with county matters, accepted certain written orders drawn by the contractor in favor of a bank against funds coming to him under the contract. The
In Weathers v. Easterling, 153 Ga. 601, 604 (113 S. E. 152), the contract was one relating to county business under supervision of the county commissioners about which the county authorities had statutory power to contract. It was their duty to put it upon their minutes. The decision recognizes the principle that ordinarily mandamus will not lie to compel a vain or useless thing, but holds that in cases of this character the remedy' will apply to compel the commissioners to put the contract upon the records where the contract shows upon its face that it is valid.
It is provided in the Civil Code (1910), § 5541: “Copies of contracts, obligations to' pay, or other writings should be incorporated in or attached to the petition in all eases in which they constitute the cause of action, or the relief prayed for must be based thereon. In suits to recpver money on an insurance policy it shall not be necessary to attach a copy of what may be written or printed upon the policy, except what appears upon the face or in the body of the policy. In suits on account a bill of particulars should be attached. In actions for the recovery of land the plaintiff must attach an abstract of his title.” A suit for 'mandamus against county commissioners to compel them to put upon their minutes a contract between a contractor and the county, as required by the Civil Code (1910), § 386, is not a suit upon the contract (Weathers v. Easterling, supra), and consequently is not comprehended by the provisions of the above-quoted code section. The general principles of pleading would not require a copy of the contract to be set out in the petition for mandamus, where its substance is alleged and there is an offer to produce the original when required by the court.
Applying the principles announced in the preceding division, the case having been submitted to the judge upon the petition and answer, and the contracts, profert of which is made in the petition, being produced by the defendant and being before the court, and the answer of the defendant setting up no sufficient reason why they should not be recorded, and it not being made to appear by any evidence in the record that the contracts on their faces were invalid, the court did not err in making the mandamus absolute.
Judgment affirmed.