Plaintiff had verdict and judgment for $2,213.60, paid by it to defendant on a contract of sale of a used motor road grader, submitted on the theory of rescission of the contract. Defendant has appealed. We have jurisdiction because plaintiff is a political subdivision of the State. Section 3, Art. 5, 1945 Const. V.A.M.S.; Harrison and Mercer County Drainage District v. Trail Creek Tp.,
Defendant contends the petition did not state .a claim upon which relief could be granted and that on the evidence it was entitled to a directed verdict. The complaint against the petition is that it commingled in one count two inconsistent causes of action, one for breach of warranty and one for rescission. Defendant raised this point both by motion to dismiss and by motion to elect. , While it appears that the motion to elect should have been sustained, this error was harmless because only evidence on rescission was admitted and because at the close of the evidence plaintiff did elect by announcing that “it is the intention of the plaintiff to ask instructions only on rescission of the contract and not on. breach of warrantyand that was the way the case was submitted. White v. St. Louis & Meramec Railroad Co.,
Defendant also contends both as to the petition and as to the evidence that no claim was stated and no cаse was made against defendant because the contract was void for two reasons.
First: because the contract'was signed by the three members of the township board individually and" because the evidence showed that it was signed by the members of the board ⅛ the рublic road,' when the machine was delivered, and failed’ to show that this was done in a meeting of the board duly assembled at''the office of the township clerk in accordance with Section 65.300 or that a record was made of the contract by *324 the clerk in aсcordance with Section 65.420. (Statutory references are to RSMo and V.A.M.S.)
Second: because the contract shows on its face that it is an effort to anticipate the income and revenues of Grand River Township for the years 1952 and 1953 following the year the contract became effective, and thereby created a debt within the meaning of Section 26(a) of Article VI of the Constitution and, therefore, is illegal and void.
Defendant further contends that no case on rescission was made because plaintiff did not offer to return the machine until months after its defects were discovered and after the first payment of March 1, 1952 was made; and claims that, as a matter of law, the tender was not made in a reasonable time, citing Brandtjen and Kluge, Inc. v. Burd & Fletcher Co.,
The following facts were shown by plaintiff’s evidence. The purchase order made a 60 day guarantee. The order was dated June 27, 1951 and the machine broke down early in July and defendant sent men out to fix it. The trouble then was that the clutch went out. About three weeks later, it broke down a second time; this time it was a valve and piston. Defendant’s men again came out and repaired it. About two weeks later, it broke down a third time. This was reported to defendant but it did not make repairs and they were finally made at Lathrop. In September or October, the machine broke down a fourth time. During that fall, the township trustee made two trips to Chillicothe to talk to defendant about the machine, and defendant’s men said: “We will try to look after it and help you out on it.” They never did anything but wanted to trade plaintiff another machine. Plaintiff’s own men repaired the machine but it broke down a fifth time. Finally, on April 1, 1952, plaintiff quit trying to use the machine, parked it, and has not used it since. The first notice of rescission, offer to return the machine and demand for the amount paid, was made in August 1952, Plaintiff’s first operator worked with the machine from June 27, 1951 until August 15, 1951. He said he operated it about 15 days during that time. He said the first day the governor would not work and would not pull the blade down like it should. He also said the gear box spindle bolts were worn, the brakes were no good, and it leaked oil so that it was necessary to stop about every two hours tо put in more oil. He also said the whole machine was worn out, that the motor was too small and that it could not do proper grading and ditching. The operator who took his place said between August 15, 1951 and April 1, 1952, when the use of the machine ended, he worked 603 hours with thе machine and that 253 hours of this total was working on repairs. He said “the clutch kept going out on it”; that “a valve kept burning off on it”; and “the oiling solution that worked the hydraulic system kept leaking on us.” Plaintiff also had evidence that the value of the machine purchased, аnd the value of the tractor traded in, was each $500 and that it would have been an even trade to trade one for the other. Defendant offered no evidence.
In some of the cases cited by defendant there was no tender at all of the propеrty purchased. In the Brandtjen and Kluge case, supra, it was held the right of rescission was waived by continued use of a machine for more than two years after tender and attempt to rescind. In the Aeolian Co. case, supra, 65 S.W.2d, loc. cit. 113, a four months delay was held not unreasonable as
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a matter of law when “plaintiff was continually attempting to put the piano in condition until * * * very shortly before defendant’s rescission was expressed.” This view is also expressed in McCartney v. Taylor Aircraft Co., Mo.App.,
However, we agree with defendant that the contract of purchase was not a valid contract (at least upon the .second ground stated by defendant) and this makes the case very different from those herein-above cited. Defendant considers that the applicable principle is that courts will not aid either party to an illegal contract. However, this contract was ultra vires rather than illegal. “The objection to the contract is not merely that the corpоration ought not to have made it, but that it could not make it”; and furthermore it is a well established principle that a governmental unit is not estopped by illegal or unauthorized acts of its officers. See Donovan v. Kansas City,
Thе matter of the right of a public body to recover payments made under an
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invalid contract is covered by an Annotation in
The situation here is very different from that in the Bride case. In the first place, this Contract was beyond the powers of the Township to make. Although it had authority to purchase road machinery (see Section 65.260) it had no power at all to create a debt for any purpose payable out of revenues of future years, without a two-thirds majority vote, because this wаs specifically prohibited by the Constitution. The enforcement of such a contract could have been enjoined. Hight v. City of Harrisonville,
Defendant’s final contention is that a lease was contemplated by the parties and not a sale, and that a lease was executed; and for this reason defendant claims to be entitled to a directеd verdict. It is true that on June 30, 1951, three days after the purchase order was signed and the machine delivered, an instrument in the form of an optional lease was signed by the parties, which provided exactly the same consideration (including the trade-in of the tractor) for this optional lease of the machine as was provided for its purchase. (The option was to continue the lease for two successive years by making the 1952 and 1953 payments.) Plaintiff’s evidence was that this instrument was signed by the board members upon the representаtion that it would help defendant to finance this in some way. Of course, at that time the sale was already completed and the tractor already turned over as the down payment on the purchase of this machine. The transaction was at all times treated as a sale by defendant. Moreover, no consideration was shown-for this subsequent agreement as a modification of the purchase agreement, and it seems clear from the evidence there was none. Furthermore, in defendant’s answer this claim of a lease is stated as a counterclaim under which defendant sought a judgment for the final payment, due- March 1, 1953; but at the close of the evidence defendant announced that it had abandoned this counterclaim, and judgment was rendered against defendant on it without any objection or appeal therefrom by defendant. This contention is without merit.
The judgment is affirmed.