188 So. 12 | Miss. | 1939
Appellee had a contract with appellant to clear and grub a link of a state highway in Wilkerson County in part performance of a principal contract which appellant had with the State Highway Commission. The length of the link was approximately 16 1/2 miles. The contract was awarded on June 17, 1936, was signed on July 11, 1936, and was to be completed in 175 working days or in about 30 weeks, after delivery of the work order. Appellee began work on July 24, 1936, a few days after the issuance of the work order, and on November 7, 1936, that is to say, at the end of 15 weeks, he had covered a distance of approximately 10 miles, or according to the more specific calculations, about 64% of his work. At the same rate he would have finished in 8 weeks more, making a total of 23 weeks, leaving a remainder of 7 weeks during which he would have had ample time to do the clean-up work left behind.
There was, therefore, no breach of the contract by appellee, and pursuing the entire record by a close analysis of the facts, we are of the opinion that under the evidence, the findings by the chancellor are supported adversely to appellant on every assignment of error, save as to the following:
This was a federal aid project and under the Acts of Congress and the government regulations adopted in pursuance thereof the hours of work for manual labor were limited to eight hours per day and to specified hours per week. This was to spread the employment among as many in need of work as was reasonably possible and *232 practicable, eight hours being deemed both reasonable and practicable — all this to furnish employment and to relieve unemployment. Appellee, instead of observing the contract with the State Highway Department in this respect, and the government regulations aforesaid, worked men overtime and paid them for the overtime, so that his pay rolls, Nos. 1 to 16, upon which he seeks here to recover, showed a total paid out for labor in the sum of $6,663.58, while in reporting to the government labor checker, his pay rolls disclosed not the time the men actually worked, but the hours which, under the contract and the labor regulations, they were allowed to work, with the result that the certified labor pay rolls made for the State Highway Department and the Federal Government showed a total of $5,038.80, or a difference of $1,624.78. Appellee cannot be allowed to recover this difference against appellant; and it is immaterial that appellant knew of this overtime and acquiesced in it while the work was going on, and, therefore, knew it when appellant later, by a new arrangement, agreed to reimburse appellee for all the expenses of the work.
The overtime employment was contrary to a definite and distinct public policy as regards such federal aid work, and anything expended by appellee in direct furtherance of that overtime employment was an expense against the law. In seeking to recover that expense, even as against a third party who subsequently promised reimbursement therefor and even though the third party had known of the illegal acts and had acquiesced in them at the time committed, appellee is obliged to base his effort, so to recover, upon his original unlawful action. If the courts were to aid appellee in this effort, it would be to sanction and to legalize that which was unlawful, and this no court will do, but will leave the parties where found — insofar as any illegal items or portions are concerned. All this is so well settled that citation of authority is unnecessary, but we might point to a recent *233 treatment of the subject in 12 Am. Jur. pp. 662 et seq., wherein, among others, a number of cases by this Court is cited.
Appellee says, however, that his sixteen pay rolls amounting to $6,663.58, while apparently entirely for labor, actually embraced expenditures for truck, skidder and mule hire, and that if all the box full of original exhibits introduced in the trial court, the originals of which were sent here, were gone through and audited, a segregation could and can be made of the expenditures last mentioned, which, when ascertained, should and could be deducted aside from the labor part of the total of $6,663.58.
It is not the duty of a jury or of a chancellor, and certainly it is not our duty here, to go through a mass of papers, much less when there is a box full of them, as here, and make any such segregations. We dealt with this question in Crawford v. State,
The decree will be reversed, and a decree entered here for appellee for the amount of the original decree, which was $3,114.90, less $1,624.78, making the amount of the decree here $1,490.12, with legal interest thereon to run from the date of the original decree, which was December 15, 1938.
Reversed and modified decree here for appellee. *234