Dixon v. Greene County

76 Miss. 794 | Miss. | 1899

Whitfield, J.,

delivered the opinion of the court.

We notice only what seems necessary to decision. The Hulls were not enjoined from building, but from removing the old courthouse and interfering with it. Their removal of it and interference with it had been accomplished before they had any notice that the writ had issued. The decree dissolving the injunction as to them is, for that reason, affirmed. We do not deem it necessary to decide whether § 294 of code 1892 is to be construed by itself or in connection with §§ 340,. 344, though the language of the court in Benton County v. Patrick, 54 Miss., 240, and Paxton v. Baum, 59 Miss., 539, would seem to indicate that they should be construed together. The notice is substantially sufficient. The plans and specifications were on file and were referred to, from which all detailed information could have been obtained. The only express contract made by the board was to be found in the order on its minutes, and the plans and specifications made part thereof by reference. The arbitration clause is in the memorandum and is no part of the contract. But in the contract it is stipulated as follows: “The superintending board reserves the right of making any alterations or additions to the drawings they may see proper without in any way affecting the validity of the contract. The value of such alterations to be added to or deducted from the amount to be paid at market prices. The contractor will not be allowed any additional compensation unless he receives written authority from the superintending board. ’ ’

This provision is a nullity. The board of supervisors cannot delegate powers intrusted to that board, to be by that board alone exercised, to any superintending board. Benton County v. Patrick, 54 Miss., 240.

It is clearly shown that the roof was the most important single item in the contract, and was to be of the best Bangor slate. The contractors themselves say that it ‘ ‘ above all ’ ’ must be dealt with as per contract. And yet a tin roof is shown to have been put on, and there is nothing in the evidence to warrant the argument that it was merely provisional. But we think there is a failure to show any fraud in the case, and we do not see why the way to a just settlement of the differences between the parties is not plain and easy. We think the chancellor, under all the facts in evidence, acted wisely in retaining the injunction against the board of supervisors prohibiting them from making .any payment to the Hulls under the contract as it stands. But, under the law as announced in Benton County v. Patrick, the board and the Hulls can make an amendment of their original contract, substituting a tin roof for a slate roof, on such terms as they may wisely deem just, such contract amendment to be spread on the minutes of the board; or the board may require the Hulls to go forward and complete their contract as they agreed to do as to a slate roof, if this/ is by the board deemed best for the county. The Hulls cannot complain of being made to put on the very roof their contract called for.

. We do not think the form of the decree, which practically perpetuates the injunction, is correct. We therefore reverse the decree retaining the injunction against the board of supervisors, in so far only as it is made perpetual, and remand the case with instructions to the court below to discharge the injunction whenever either of the two things indicated above shall have been done.

Bo ordered.