80 W. Va. 46 | W. Va. | 1917
Plaintiff, suing for the benefit of his assignees, avers in his. declaration that in the month of July, 1913, he entered into, a contract with the defendants Edward O’Toole, R. L. Johnson and A. M. Spangler,'members of the‘board of education of Adkin District, McDowell County, and the defendant C. G-. Seaton, secretary of said board, for the -performance of certain work upon a high school building, for the construction of certain school houses in the district of Adkin, and for repairs to certain other school houses in said district. He avers that the performance of this contract required' the expenditure by the board of education of a large sum of money which is set out in his declaration, and he avers that the same was in excess of the funds available for the purpose at the time. He further alleges that in accordance with the terms of the contract he proceeded to perform the same, and did perform the same; that certain amounts were paid to him from time to time as the contract was being performed, and that there remains due to him the sum of $4,851.66 which he has been unable to collect by reason of the fact that the board of education of Adkin District did not have the funds available for the payment of the same, and that there is a personal liability upon the defendants for this amount because of their entering into,a contract requiring the expenditure of money in excess of the funds available. The defendants craved oyer of the writ and demurred to the declaration.
The principal grounds of demurrer relied upon are that the cause of action was barred by the statute of limitations at the time the suit was brought which, it is claimed, appears from the averments of the declaration in connection with the writ issued in this case; and that the cause of action was not assignable, which would deny the right of Doss’s assignees to maintain the suit. These questions may be considered together.
The statute relied upon to bar the action is section 12 of chapter 104 of the Code, as follows: “Every personal action for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the
The statute under consideration here materially differs in its terms from the statute there considered.. As a punishment to the members of the board of education for a violation, of the statute under consideration here there is a provision for fine or imprisonment. The provision here invoked to sustain this recovery is not so much for the purpose of punishing the violators of the statute as it is to furnish a remedy to a party injured by reason of the violation of it. It will be noted that recovery depends upon injury, and the recovery is limited to the injury sustained by the complaining party, thus making the basis of the recovery in any case indemnity for the injury inflicted. We are of the opinion that the cause of action given by this statute is more nearly akin to the cause 'of action created by those statutes which make officers and directors of a private .corporation personally liable to parties injured for malfeasance or misfeasance, and in this class of cases it has been held with practical uniformity that the cause of action survives. The effect of the statute is to deny to the members of a board of education violating its terms the right to say that they, acted in their official capacity when they did the things inhibited by the statute; that they are, when doing those things, individuals, and not officers; and that they- are liable as individuals as fully and to the same extent as if the contract were made by them in their individual capacity, and for their individual benefit. Statutes creating a personal liability upon officers of private corporations for misfeasance or malfeasance have generally been con
Upon the trial of the case it was shown that in the summer of 1912 the board of education of Adkin District issued and sold forty thousand dollars of bonds for the purpose of erecting a high school building at Gary in said district; that it advertised for bids for the erection of this high school, and receiving no satisfactory bids therefor it decided to construct the same itself. To this end it entered into a contract in the •month of June, 1912, with the plaintiff Doss by which, in consideration that he would superintend the construction of said building, it agreed to pay him the sum of twenty-five hundred dollars. This is the only contract that Doss ever had in regard to the construction of the high school building, and it was made more than a year before the contract he sets up in his declaration. It appears that the construction of the high school building proceeded, and that it was completed at a cost of something like fifty thousand dollars. During the progress of this work Doss kept the time of the men employed on the building and, on turning in his payrolls, orders were drawn to meet the same, he procured the money thereon, and paid the men. He contends that toward the latter part of the work he paid the men out of his own money and did not get the same from the board of education.
There is no evidence to show that at the time the board of education entered into the contract with Doss to Superintend the construction of the high school building it did not have ample funds to meet all obligations which it had entered into up to-that time, including this contract with Doss, unless it is assumed that because the high school cost fifty thousand dollars, and the bond issue was for only forty thousand, the board of education contracted for expenditures in excess of the funds which it had available. It cannot be taken for granted that the board of education did not have other funds available in its building fund to meet the requirements of this high school construction. In Camden Clay Co. v. Town of New Martinsville, 67 W. Va. 525, it was held: “A party to assert successfully the invalidity of a contract made by a municipal corporation, on the ground that it has assumed an indebtedness beyond that which it could legally assume by the contract, must establish by clear evidence all facts necessary to show the alleged invalidity. ’ ’ In order for the plaintiff to successfully hold the defendants personally liable for any part of the obligation incurred under the contract entered into in June, 1912, in regard to the high school building, it will be necessary for him to prove that the funds available at the time, including the bond issue and such other funds as the board of education had the right to use for the purpose, were insufficient to meet the requirements of the contracts which it had then entered into and the work it had then undertaken. If it should turn out that at the time the contract was entered into sufficient funds were available to meet its obligation as well as all other obligations of the board of education existing at that time, it is a valid contract and the
As to that part of this claim which is for money paid by Doss to the men working for the board of education, we do not know upon what theory it is sought to hold the defendants liable. It nowhere appears that they ever contracted with Doss in regard to this, ever directed him to pay their men, or ever authorized him to do so, except that after he had spent the money two members of the board authorized an allowance
It is further shown that in the month of July, 1913, the board of education of Adlrin District at a meeting determined that it was necessary, in order to accommodate the increased number of pupils in the district, to provide seven additional school .rooms, and to this end it directed the erection of seven buildings at seven different places specified in the order, and authorized and directed its secretary and its district superintendent to arrange for the construction of these seven additional rooms at the points indicated, and authorized the secretary to enter into contracts for their construction. Doss claims that he was present at the meeting of the board of education, and that it was agreed that he should construct these buildings; that he should receive therefor the sum of eleven hundred dollars for each of the buildings above the foundation, and in addition thereto such further sum as it would cost to do the excavation and construct the foundations. It does not appear what contracts were entered into by the secretary of the board -with Doss pursuant to the authority given him in the resolution referred to, but the evidence does show that Doss constructed in the latter part of 1913 a three-room building at Jenkinjones in said district; a one-room building at O’Toole’s Siding in said district; a two-room building at Black Wolf in said district; and another building at Anawalt in said distinct; and that other parties constructed another one-room building by virtue of this authority, mailing in all eight additional rooms provided instead of seven as called for in the order of the board. It is not shown what authority the secretary or anyone else had to provide this additional room, nor does it appear why the three-room building was provided at Jenkin-jones and a two-room building at Black Wolf, instead of a one-room building, as provided in the order. At the time
The plaintiff charges in his account items for placing the seats in the buildings constructed by him amounting to $360. and for constructing coal houses and other out-buildings amounting to $410. So far as any evidence in this case shows there was no contract with the board for this work and no authority given plaintiff to do it. The defendants in this case cannot be held liable for the cost of such work unless it is shown that it was done by direction of the board of edu
Some of the demands set up by the plaintiff are claimed to be excessive. We express no opinion upon the correctness of such charges.' The correctness of such charges will have to be determined hereafter in any such suit or suits as the plaintiff is advised he can maintain to recover therefor.
There is another item claimed for material furnished for repairs on certain school buildings in Adkin District. The plaintiff testifies that he furnished this material on orders sent to him by the defendant C. G-. Seaton, and that he charged therefor the value thereof. It is not shown that he ever had a contract with the board of education to furnish this material, or that he ever had any communication with any member of the board in regard thereto. We do not see upon what ground the defendants were held liable for this item, unless it is upon the theory that after the material had been furnished the board of education, or rather two members thereof, in a meeting agreed to pay therefor. However, as we have before stated, while an agreement by the board of education to pay for supplies furnished it, or work done for it, without a contract, might have the effect to ratify the contract so far as the board of education is concerned, the members of the board cannot be held personally responsible because of such attempt to pay after the work has been done, or the material furnished, for the reason that such effort upon the part of the board of education did not result in an injury to the plaintiff. If it affected him at all it was for his benefit. He had already furnished the material; had already spent the money; and this action of the board of education did not put him in any worse position than he was before.
For the foregoing reasons we are of opinion to reverse the judgment of the circuit court of McDowell County, set aside the verdict of the jury, and remand the cause for a new trial .
Judgment reversed. Verdict set aside. Cause remanded for new trial.