McClure Bros. v. School District

79 Mo. App. 80 | Mo. Ct. App. | 1899

SMITH, P. J.

The statement of this case made by us when it was here on another occasion — 66 Mo. App. 86— will, we think, be found sufficient for a correct understanding of the questions presented for decision by the present appeal.

The instructions upon which the case was submitted to the jury, it is conceded, conformed to the views expressed by us when the case was here on the other appeal. Hnder these instructions the jury found for the plaintiff, in effect, that the material sued for was the property of the plaintiff at the time it was converted by the board of directors of the-defendant school district and that of this fact the latter then' had notice, and, further, that said material was not included' in any estimate made by the superintendent in which Gordy & White received payment.

It appears that after the material which Gordy & White had purchased of the plaintiffs had been laid down by them on the school site, they refused to proceed with the contract for building the school house so that the directors of the defendant school district, in order to secure the completion of the school house, re-let the work, in its unfinished condition, to Christine & Becker.

Under the contract re-letting the work the directors of the defendant school district agreed to furnish all the materials then on the ground which included the plaintiffs’ materials. By this agreement Christine & Becker used the plaintiffs’ material in the work of completing the school house. It is admitted that the requisite statutory steps had been taken to authorize the directors of the defendant school district to build the school house and to issue bonds for that purpose and that pursuant to that authority the bonds were issued, and that the proceeds arising from the sale thereof amounting to $12,000 were in the hands of the said directors. The question now is, whether or not the defendant school district is liable in this suit for the action of its directors in thus appropriating and using the plaintiffs’ material in the building of the school house.

schools: P°wer °f meruit. A board of school directors have power to contract for things within the scope and contemplation of their authority and power. Beach on Public Corp., sec. 1361. It is obvious that where, as here, the power is conferred upon a school board to build a school house and a fund is placed in its hands for that purpose that the power incidental and necessary to make effectual the grant must be implied. In many instances the exercise of this power is regulated by statute, but in this state there is no such statute. It has been held that where a school board receives goods for the benefit of the school district and uses the same, an implied' contract will arise to pay the reasonable value thereof. Beach on Public Corp., sec. 1361; Davis v. School Dist., 81 Mich. 214; Trustees v. Trustees, 81 Ill. 470; Furniture Co. v. School Dist., 50 Kan. 727; Furniture Co. v. School Dist., 122 Pa. St. 494; Argenti v. San Francisco, 16 Cal. 255.

_:_. conversion‘ It is an elementary principle of the law that where one takes and converts to his own use the property of another, such other may recover the reasonable value thereof in an action of assumpsit. It can not be contended that it was not within the power of the defendant’s board of directors to purchase the material in question. If its board of directors chose to appropriate the material without first purchasing’ the same of the owner why is it not liable therefor on an implied assumpsit? Can it be that a board of directors of a school district which is invested with power to build a school house and procure material therefor can, in the execution of the power, authorize its agents to appropriate and use the building material of another, and when it is called upon to pay for the same, successfully claim exemption from liability therefor on the ground that the act of appropriation was a tort of its board of directors for which it is not liable ? It seems to us that if procuring this building material was within- the authority of the school board and if it did procure such material, though in a wrongful manner, and the same was used in the construction of the school house, then, according to every principle of common honesty, the district ought to be liable for the value thereof without reference to whether or not the directors procured the same by purchase or by wrongful appropriation.

governmeiu^ihiBility for negligence of directors. The management of the public schools is a branch of the state government and school districts as a part of the educational system of the state are on the same footing as counties in respect to liability to individuals for breach of official duty by their officers. A school district is not liable for the negligence of its directors nor, indeed, in any action sounding in tort for a breach of official duty by such directors. Finch, v. Board of Education, 30 Ohio, 37; Bank v. School Dist., 51 N. W. Rep. (Minn.) 269; Bigelow v. Randolph, 14 Gray, 541; Elmore v. Drainage Com’rs, 135 Ill. 269.

Oan it be that the board of directors, having the authority to procure and pay .for the plaintiffs’ materials out of the fund in its hands, could appropriate and use such materials in the completion of the school house, which it had undertaken to build, and the school district incur no liability on account of such action of its directors? If so, this would enable it not only to keep the material but .also the money which its board of directors was authorized to use in procuring the same. Can it keep both? May v. Juneau Co., 30 Fed. Rep. 241; Ham v. New York City, 70 N. Y. 459, and other authorities cited in defendants’ brief.

directors: assumpsit: presumption with regard to funds. It is not to be understood b.y what has been said that school directors may not be. liable to an action when they bind themselves individually, or when, by their wrongful conduct, they cause injury to another. Allen v. Trustees, etc., 23 Mo. 418. While a school district is not liable in actions sounding damages lor the wrongful action of its board of directors, no reason is seen why it may not be liable in an action of assumpsit in a case like the present where its board of directors are authorized to procure building material in a lawful manner, but, instead of adopting a lawful manner, it adopts an unlawful manner, and by such latter manner the material is procured and used by it. As no part of the funds in the hands of the board of directors which it was authorized to pay out for the materials was so used, the same may be conclusively presumed to be still in the custody of the board, and ought to be subjected to the payment of the plaintiffs’ claim.

—; liability of wrongful act or version?1 con‘ But if the fund in the custody of the board of directors was exhausted in building the school house, so that there remains no part thereof out of- which the plaintiffs’ claim may be paid, it is quite difficult to discover if plaintiffs should obtain a judgment on a proper form of. action how they could be satisfied. The many difficulties in the way of obtaining satisfaction of such a ° ° judgment may be readily seen by reference to the authorities cited in defendants’ brief. The plaintiffs have sued the defendant to recover damages for the wrongful act of the board of directors in converting and appropriating their property, and we think the judgment therein can not be upheld. The evidence discloses no .liability of the defendant on the allegations of the petition. It results that the judgment must be reversed.

All concur.