48 Mo. App. 416 | Mo. Ct. App. | 1892
The .plaintiff sued the defendant for an amount alleged to be due for repairing the roads of the township, basing his claim on a written contract executed in the name of the township by the chairman of the board of directors thereof. To the second amended petition the court sustained a demurrer ; plaintiff stood on the petition, final judgment was rendered for defendant, and plaintiff appealed.
It is unnecessary to state entire the allegations of the petition. The sufficiency of the writing signed by the plaintiff and by the chairman of the township board of directors (the alleged contract sued on) is the only matter we find important to consider. This instrument is filed with and set out in the petition; and its efficacy to bind the defendant township is thus assailed in the demurrer to the petition : “Second. It is averred in said second amended petition that the said contract sued upon herein was made and entered “into by and between plaintiff and the- board of directors of this defendant, and signed by the chairman thereof, and not made by and between plaintiff and the overseer of said road district, and approved by the defendant’s board of directors as by law required. Third. Because the defendant’s board of directors never had any power to make any such contract as the one sued upon in said amended petition, but only the power of approval of an otherwise valid contract made with, the overseer of said road district.
It is clearly the intention of this statute that the several road overseers in the township shall, for it, contract with the parties to work the roads. The duties in this behalf are divided, part are to be performed by the board of directors and part by the overseers. It is left to the board, in the exercise of its discretion, to order the road tax to be paid in money rather than in work; and when so ordered then the road overseer must proceed to determine the work necessary to be done, shall advertise for bids, specifically setting out the work required ; and when the bids are offered the overseer in behalf of the township enters into contract with the lowest and best bidder. The contract, it is true, must, before it becomes a binding obligation on the township, be approved by the board of directors, yet manifestly the duty of making and signing the contract for the work rests, by the clear words of the law, upon the road overseer. Hence, it follows that the instrument of writing here pleaded was not executed on behalf of the township by the party designated by the
There is nothing in the way of ratification to be invoked in this case. No payment that the directors or other officers of the defendant may have made to the plaintiff would validate this invalid contract. As such officers could not make the contract in the beginning, so they are powerless afterwards to ratify any contract. 1 Dill, on Mun. Corp. [4 Ed.] sec. 465; Maupin v. Franklin Co., 67 Mo. 330; Johnson v. School Dist., 67 Mo. 319.
The judgment must be affirmed.