Groton Bridge & Manufacturing Co. v. Warren County

80 Miss. 214 | Miss. | 1902

Wiiiteieud, C. J.,

delivered the opinion of the court.

The arrangement made through one member of the board was void. Board v. Patrick, 54 Miss., 240, controls this case. In the note to Gilman v. Contra Costa County, 68 Am. Dec., 292, it is said, speaking of a contract informally made: “It may be ratified at a subsequent meeting of the board in legal session, and the county thus become liable;” citing three authorities. But no such ratification of the board in open session was obtained by the appellant in this case. In 7 Am. & Eng. Enc. Law (2d ed.), p. 946, it is said that “such liability on an implied contract will not attach where an express contract only is contemplated by statute;” citing, in note 2, Wollcot v. Lawrence County, 26 Mo., 272; Lehigh County v. Kleckner, 5 Watts & S., 181. In the former case the court say: “The county court is only the agent of the county, and, like any other agent, must pursue its authority, and act within the scope of its power. In respect to many things that concern the county, it has a large discretion; but in reference to the erection of county buildings its authority is defined by a public law, and is special and limited. It cannot act like general agents, whose acts may bind their principals if performed within the general scope of their agency, though in violation of private instructions unknown to those who deal with them, for it has no power over the subject except such as is given by law; and every person who deals with the county court, acting in behalf of the county, is bound to know the law that confers the authority. There is no difference in this respect between public and private agents, and if the county court exceeds its special and limited authority, conferred by the statute, in a material matter, the county will not be bound. The act concerning county buildings (Bev. St., 1845, p. 286) regulates the whole subject. The manifest policy of the act was to prevent the embarrassment of counties by tbe erection of buildings more costly than tbeir necessities require, and the incurring of liabilities beyond tbeir ability to pay. Tbe first step to be taken by tbe county court before proceeding to tbe erection of county buildings is to ascertain tbat sufficient funds are in tbe treasury unappropriated, or that tbe circumstances of the county otherwise permit; and then to make an order appropriating a certain sum for tbe purpose, which shall cover tbe maximum cost; and tbe contract price cannot exceed tbe amount appropriated. This provision was evidently suggested by tbe universal experience tbat tbe cost of public works generally exceeds tbe estimate, and there would be no safeguards for tbe funds or credit of a county if the public buildings were let out to be built by contract, and tbe price left to be determined according to tbe value of tbe work after its completion. . . . This law is tbe warrant of attorney to the county court. All its provisions are plain; and tbe contractor, before be undertakes tbe work, as be deals with an agent whose powers and duties are prescribed, ought to see tbat tbe agent is pursuing its authority; for tbe agent cannot bind tbe county except as it is commanded or permitted to do. If tbe agent of a private person produced to a builder a power of attorney authorizing him to contract for building a bouse of certain dimensions, and tbe cost not to exceed a given sum, and in tbe face of his authority should contract for a bouse of a different kind at a greater cost, no one would pretend tbat tbe contract would bind tbe principal unless be subsequently ratified it; and it is only tbe application of this familiar rule tbat we apply to this case. If any effect is to be given to tbe law at all, its plain directions must be followed, and to allow a manifest departure from them would not only be a violation of an established rule tbat governs tbe relation 'of principal and agent, but would remove all tbe restrictions which the law has imposed upon tbe county court in contracting debts to be paid by the county. The petition in this case does not aver a contract of any kind with tbe county court, but tbe plaintiff seeks to recover upon a quantum meruit. In our opinion tbe county is not liable upon an implied promise. The acceptance of the building by the county court did not help the plaintiff, for the ratification must come from the principal. Delafield v. Illinois, 2 Hill, 175.” See specially note to Gilman v. Contra Costa County, 68 Am. Dec., 292, 293. Section 344 of the code of 1892 is express in its provision that “a board of supervisors shall not empower or authorize any one or more members of such board, or other person, to let or make contracts for the building or erection of public works of any description, or for working public roads, in vacation or during the recess of said board; but all such contracts shall be made and approved by said board in open session.” It is plain from this that a county cannot, as to the subject-matter covered by § 344, be bound by an implied contract. The very purpose of this statute was to cut off entirely any possibility of fraudulent claims for extra work done and materials furnished, and it limits the board of supervisors to express contracts in respect to the subject-matters embraced in the statute, made in the mode pointed out. We think, as we have heretofore held in Board v. Patrick, supra, and Dixon v. Greene County, 76 Miss., 794 (25 So., 665), that a board may, by a new contract, or an amendment of its original contract, or by a ratification (all of which must be by acts of the board in open session, spread upon its minutes), bind the county to pay in each of the cases named. And parties contracting with the counties are charged with knowledge of this statute, and unless they pursue the terms of the contracts made in pursuance of § 344, or, in case of extra work or labor for the board, amend the contract or ratify one informally made, in accordance with § 344, no recovery can be had against the county. The manifest purpose of the statute was that the county should be bound by the contract of tbe board, as a board, in open session, and spread upon its minutes. The appellant here has not pursued the course marked out in Board v. Patrick, and, in the absence of any amendment to its original contract, or ratification of the one informally made, has sued at law, and must, of course, fail, as held in that case, which controls here.

Affirmed.