77 So. 299 | Miss. | 1917
delivered the opinion of the court.
Tally & Mayson, attorneys, filed a claim with Lamar county for five hundred dollars, claim being in the following words:
“Lamar County, Debtor, to'
Tally & Mayson,.......$500. 00
“For the value of services rendered Lamar county in the suits lately pending in the circuit court of Lamar county, wherein the White Company was plaintiff, and John I. Cook, treasurer of Lamar county, defendant in one suit, and R. L. McNair, clerk of the board, defendant in the other suit.”
This claim was filed under contract made by the board of supervisors at its January, 1916, meeting, which contract is in the following words, as evidenced by the minutes of the board:
“Whereas, at the December, 1915, meeting of the board of supervisors of Lamar county, the board authorized the clerk to issue three warrants in the sum of six thousand one hundred ninety-one dollars, and fifteen cents in payment of one White tractor engine and freight; and whereas, this board passed an order at this meeting,, which order is of record in Minute Book 3 at page 182, directing the treasurer of'said county to refuse to pay the said warrants, for reasons as set out therein; and whereas, the said White Company, through its salesman, M. C. Munson, has made known to this board by verbal statement that the said White Company expected to make formal demand on said treasurer for payment of said warrants, and that on refusal to do so that the said White Company would institute proceedings in law to force and compel the payment of said warrant, and it being the intention of this board, for and in behalf of said county of Lamar, to defend any action in court that may or might be instituted against said treasurer: It is hereby ordered*598 that Tally & Mayson be employed to represent and defend the said treasurer against any action filed against him to compel the payment of said warrant, and it is further ordered that the sum of five hundred dollars he appropriated out of the general county funds of said county for the purpose of paying said Tally & Mayson as a fee for services to he rendered, provided, however, that if any such action or suit is successfully terminated in favor of said treasurer, then the payment to he made; otherwise the county only agrees to pay accrued costs, etc.; and the board further agrees for and in behalf of the county to fully and completely protect the said treasurer against any costs or damages that might accrue against him for refusal to pay said warrant.
“Ordered this the 9th day of February, 1916, in open session.
“Voting aye: Carter, Weems, Stanford. Voting nay: J. D. Hatten, Geo. W. Byrd.”
It appears that under this contract the cause referred to came on for hearing in the circuit court, and a judgment was rendered adverse to the treasurer of the county. From the judgment of the circuit court the district attorney and Tally & Mayson took an appeal to the supreme court. At the August meeting, 1916, the hoard entered an order on its minutes ratifying the action of the district attorney and his associates in appealing this case, and in this order ratifying it is recited that the hoard will pay the costs if the case is affirmed by the supreme court. An order was entered at the September, 1916, meeting of the hoard compromising this suit in which it is recited that the suit in the circuit court terminated adversely to the defendants Cook, treasurer, and McNair, clerk. The order recites the agreement of compromise, ánd it recites that Tally & Mayson appeared and objected to the dismissal of the appeal. The hoard of supervisors disallowed the claim of Tally & Mayson for services under the above con
“The petition in this case does not aver a contract of any kind with the county court, but the plaintiff seeks to recover upon a quantum meruit. In our opinion the county is not liable upon an implied promise.”
Again on the same page it is said:
“It is plain from this that a county cannot, as to the subject-matter covered by section 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,” etc.
The record in this case does not contain the pleadings, evidence, etc., involved in the suit in which it is alleged that Tally & Mayson rendered services of the value of five hundred dollars. We are unable to tell from this record as to whether there was any merit in the appeal or not. The substance of the issues in that suit is not set forth in the bill of exceptions, • and we
The board of supervisors had the right to control the litigation and dismiss the appeal, and it was its duty to do so, if it was convinced such appeal would result adversely to the county. The board, being trustees of the public, cannot divest itself of this power' and duty by contract.
Judgment of the court below is reversed, and judgment entered here for the county.
Reversed, and judgment here.