136 Ark. 209 | Ark. | 1918
(after stating the facts). The claim was disallowed because no appropriation had been made for buying road machinery by the levying court and that for this reason the county court had no authority to make a contract for its purchase. The ruling is sought to be upheld under section 1502 of Kirby’s Digest, which reads as follows:
“No county court or agent of any county shall hereafter make any contract on behalf of the county unless an appropriation has been previously made therefor and is wholly or in part unexpended.”
It has been held that under this section the county court has no power to let a contract to construct a bridge without some appropriation has been made for building bridges by the levying court. Greenberg Iron Co. v. Dixon, 127 Ark. 470, and Fones Hardware Co. v. Erb, 54 Ark. 645. If that was all there was in the present case, the judgment disallowing the claim would be right, because the contract for the purchase of the machinery was made by the county judge before an appropriation therefor was made by the levying court. After the appropriation for the road machinery was made the county retained the machinery and continued to use it. The county could not keep the machinery and use it for the benefit of the public and still defeat the claim for its purchase price. The county court could have purchased the road machinery after an appropriation was made therefor by the levying court in October, 1916. The machinery was then in the possession of the county. If the county judge did not wish'to keep the machinery, he should not have continued to use it and should have notified the International Harvester Company that it was there .subject to its orders. The county could not retain the property which it might then legally purchase, continue to use it and defeat a recovery for the price thereof. This follows from the principles decided in Howard County v. Lambright, 72 Ark. 330, and Forrest City v. Orgill, 87 Ark. 389. 'In the latter case the city of Forrest City purchased machinery for water works, and the contract was void because not executed as required by section 5473 of Kirby’s Digest: The city, however, kept the machinery and continued to use it: The court held that, inasmuch as the contract was one within the power of the municipality to make, although it was made without authority, it could not retain the machinery, use it and at the same time defeat a lien for the price thereof.
It follows that the court erred in refusing to allow the claim of the International Harvester Company of America, and for that error the judgment must be reversed and the cause remanded for further proceedings according to law.