78 So. 639 | Ala. Ct. App. | 1918
On February 21, 1912, an agreement was entered into between the commissioners' court of Jackson county, undertaking to act for the county, and Terrell-Hedges Company, appellee here, whereby appellee, in consideration of a certain sum of money, agreed to install in the new courthouse of the county certain electric light fixtures, whereupon appellee proceeded to install the fixtures stipulated in the contract. At the time of the making of the contract, and at the time of the installation, the county was indebted beyond its constitutional debt limit, and therefore the contract was illegal and void, of which fact both parties were charged with full knowledge. After the installation, warrants were drawn on the county treasurer and delivered to appellee, in payment of the amount called for by the contract, which warrants the treasurer refused to pay, because of the invalidity of the contract. On November 30, 1915, the county board entered into a contract with appellee, whereby it agreed to pay appellee rent on said fixtures for one year from October 1, 1915, and at the expiration of the year giving the county the option to purchase at a price or to lease for another year. On April 19, 1917, a claim was filed, in legal form, for the rent for one year, which claim was allowed and ordered paid out of the general fund of the county. The probate judge refused to draw the warrant, and this proceeding is brought to compel him to act.
It is conceded in brief by both sides that the original contract was void by reason of section 224 of the Constitution fixing a limitation on the indebtedness of counties, it being further agreed that Jackson county had, at the time of the making of the contract, exceeded this limitation. A pertinent inquiry then arises, Was the contract merely *442
void, so as to allow the appellee the benefit of that rule of primary justice recognized by the courts of this state, beginning with Allen v. La Fayette, etc.,
Recognizing this status, the petitioner sought to avoid the consequences, by entering into a contract of lease, whereby it sought to lease to the county the fixtures already installed, and the county commissioners, being willing to aid in this, entered into the lease contract on the part of the county. The terms and consideration as set forth in the contract make it clear that by an evasion of the law the court of county commissioners were attempting to pay the petitioner, out of the general fund of the county, the contract price named in the original contract. A new contract, founded in whole or in part on a past consideration or promise, which entered into or induced a former illegal and void contract, is likewise illegal and void. Pettits v. Pettits' Heirs,
It may be conceded that independently of the first contract the parties would have the authority to contract for the renting of fixtures to furnish the lights for the courthouse, but did the petitioner own the fixtures made the consideration of the lease? They had been, by voluntary act of petitioner, installed, and thereby became a part of the realty, and therefore the title had passed to the county. Barbour Plumbing Heating Co. v. Ewing,
It therefore follows that the judgment must be reversed, and a judgment will be here rendered denying the writ.
Reversed and rendered.
