Ludwig Hommel & Co. v. Incorporated Village, 21894

21894 | Ohio | Mar 19, 1930

The plaintiff in error herein will be referred to as the plaintiff, and the defendant in error as the defendant, throughout this opinion.

The petition is in short form, and claims to state a cause of action for conversion. Since the demurrer to the second and third defenses in the answer searches the record, the sufficiency of the petition is also challenged, and is here considered.

The action is a continuation of litigation between the same parties and over the same subject-matter involved in the case of Ludwig Hommel Co. v. Incorporated Village of Woodsfield,115 Ohio St. 675" court="Ohio" date_filed="1927-02-01" href="https://app.midpage.ai/document/ludwig-hommel--co-v-incorporated-village-of-woodsfield-3780398?utm_source=webapp" opinion_id="3780398">115 Ohio St. 675, 155 N.E. 386" court="Ohio" date_filed="1927-02-01" href="https://app.midpage.ai/document/ludwig-hommel--co-v-incorporated-village-of-woodsfield-3780398?utm_source=webapp" opinion_id="3780398">155 N.E. 386. That action was instituted by Ludwig Hommel Co. to recover from the village of Woodsfield for electric meters furnished by the company to the village upon orders of the board of public affairs of the village. This court denied recovery in that case, holding as follows in the syllabus:

"1. Under Sections 4328 and 4361 of the General Code, the board of public affairs of a village may not make any contract or purchase of supplies or material for any work under the supervision of the board of public affairs involving more than $500 unless such expenditure is first authorized and directed by ordinance of council, and unless after such authorization and direction the board of public affairs of the village has made a written contract with the lowest and best bidder after advertisement for not less than two or more than four consecutive weeks in a newspaper of general circulation within the village.

"2. When either the requirement of authorization and direction by ordinance of council or of advertisement for bids has been omitted, such contract imposes no valid obligation upon the village."

The court, however, indicated in that decision, which was concurred in unanimously, that the title to and right of possession of the meters still remained in the company; and the company now seeks to recover for conversion of the meters, praying for a money judgment therefor.

It is to be observed that the plaintiff company is not suing here for restitution or return of the physical property. It explains its action by the statement that in order to replevin each individual meter it would have to bring innumerable actions, and, furthermore, locate these meters in individual homes in the village, without means of knowing where each meter had been placed. However, this explanation relates to the difficulty of the remedy, and does not change the law.

Taking into consideration the decision in the former case, and bearing in mind the prayer for money judgment herein, we are compelled to view the present action as being virtually a second effort to collect upon the contract. The plaintiff in fact concedes that in order to effect a recovery, this court would have to overrule, or at least substantially modify, its judgment in the cases of Frisbie Co. v. City of East Cleveland,98 Ohio St. 266, 120 N.E. 309; Buchanan Bridge Co. v.Campbell et al., Commrs., 60 Ohio St. 406, 54 N.E. 372, and similar decisions. It was specifically held in the fourth paragraph of the syllabus in the Frisbie case, that, where no valid obligation is imposed upon a municipality by a contract entered into without compliance with the statutes, an action in damages for conversion could not be maintained against such municipality.

The statutes limiting the powers of public boards to contract or purchase supplies and materials without public and competitive bidding are enacted for the benefit of the public, to protect the funds derived from public taxation from the possible extravagance and carelessness of those entrusted with supervision of such funds. This court will not relax the protection which such statutes throw around the public treasury. It is true that a modification in the strictness of this doctrine was made in State, ex rel. Hunt,Pros. Atty., v. Fronizer, 77 Ohio St. 7, 82 N.E. 518. In that case, it was held that there could be no recovery back of money paid upon a county commissioners' bridge contract, fully executed, but rendered void because of the lack of the necessary statutory certificate by the county auditor, where there was no claim of unfairness, fraud, or extortion, and no claim of effort to put the contractor in statu quo by return of the bridge, or otherwise. The court said that this rule rested upon the principle of common honesty, and that the county should not be permitted to retain both the consideration and the bridge. However, the Fronizer case, which is still the law in this state, cannot be extended beyond the specific doctrine which it announces. It is not authority for the theory that there can be a money judgment or recovery for articles delivered to a municipality under a void contract. Moreover, the doctrine indicated in the opinion in the former case ofHommel Co. v. Incorporated Village of Woodsfield, supra, cannot be extended beyond its terms. Neither the Frisbie case nor the statement in the opinion in the former Hommel case is authority for the proposition that the Hommel Company may, under the guise of an action for conversion, compel the recovery of the money judgment which was refused in the preceding action. The prayer herein is certainly tantamount to a prayer for such recovery. In other words, the Hommel Company here asks for the same kind of relief denied in the preceding action.

Upon the authority of Frisbie Co. v. City of East Cleveland,supra, we conclude that the petition in the instant case does not state a cause of action, and that the judgments of the lower courts must therefore be affirmed.

Judgment affirmed.

MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS and DAY, JJ., concur.