113 P. 731 | Idaho | 1911
Lead Opinion
This action was brought by the Moscow Hardware Co. against the Regents of the University of Idaho and the state of Idaho.
As a first cause of action, the plaintiff alleges that between October 1, 1906, and April 1, 1907, it delivered and furnished building material, hardware, finishings, goods, wares and merchandise to be used in the construction of the building known as the “Agricultural Building” of the University of the State of Idaho, of the value of $1,468.45, and that there remains due thereon the sum of $1,174.77; that said goods, wares and merchandise were furnished to Colson & Son, who were the contractors, with the actual knowledge of the de
For a second cause of action, it is alleged that between October 10, 1906, and April 1, 1907, the plaintiff sold and delivered to the defendant upon the order of Colson & Son, goods, wares and merchandise and building material to be used, and which were used, in the construction and erection of the foundation of the Administration Building of the University of Idaho, and that said goods and materials were delivered on the grounds near where the foundation was being constructed in the city of Moscow; that Colson & Son were in charge of the work in procuring said material and in the construction of said foundation, and were doing said work under the direction and authority and with the knowledge and consent of the defendants and as its agents and representatives; that on or about February 13, 1907, the Board of Regents discharged Colson & Son and took into its possession all the goods, wares and merchandise, hardware and building material which plaintiff had delivered as aforesaid, and appropriated the same to their own use and benefit; that the defendants, nor either of them, has paid for the same or any part thereof, the reasonable value of which materials, merchandise, etc., is $414.38, with interest thereon.
As a third cause of action, plaintiff alleges that between October 1, 1906, and January 1, 1907, the Standard Lumber Co. delivered to the defendants upon the order of J. A. Colson & Son, goods, wares, merchandise, lumber and building materials to be used in and which were actually used in the construction and erection of said foundation, with the knowledge and consent of the defendants; that on or about February 13, the defendants, said Board of Regents, discharged Colson & Son, and took into their possession all of the goods, wares, merchandise, lumber and building materials which had been delivered by said Lumber Co., and kept and used the same in the building and construction of the foundation of the Administration Building; that said merchandise and material
As a fourth cause of action it is alleged that between August 1, 1906, and March 1, 1907, the Standard Lumber Co. delivered and furnished building materials, lumber, goods, wares and merchandise to be used in the construction of the building known as the Agricultural Building of the University of Idaho, at the request and upon the order of the agents, servants and persons in charge of the work of construction; that said merchandise and materials so furnished for the construction of the Agricultural Building were of the reasonable value of $4,096.45, no part of which has been paid except the sum of $1,846.50, leaving a balance due of $3,249.91, with interest thereon; that said claim was presented to the board and rejected.
For a fifth cause of action, it is alleged that between November 1, 1906, and January 1, 1907, W. A. Lauder sold and delivered to the defendants upon the order of J. A. Colson & Son, goods, wares, merchandise and sand to be used in and which were actually used in the construction and erection of the foundation of the Administration Building of the University of Idaho, and that said merchandise and material and sand were delivered on the ground belonging to defendants at or near the foundation; that Colson & Son were in charge of the work of construction of said foundation and were doing the work under the direction and authority and with the knowledge and consent of the Board of Regents; that on February 13, 1907, the Board of Regents discharged Colson & Son and took and received into their possession all of the said goods, merchandise and sand which had been delivered by Lauder, and have kept and used the same in the building and construction of said foundation, and still keep and appropriate all of the same, the reasonable value of which is $540; that there is now due the said sum of $540, with legal interest thereon.
For a sixth cause of action, it is alleged that between August 1, 1906, and March 1, 1907, Lauder delivered and furnished sand and other building materials to be used in the
The answer denies many of the material allegations of the eomplaint; denies that the Board of Regents is a corporation, and denies that the Board of Regents or the state is owing the plaintiff in any sum whatever on any cause of action set forth in the complaint. The cause was referred to a referee to take the evidence in the case, and in the return of the referee is found a stipulation by the parties to the effect that no question shall be raised with reference to the Regents of the University of the State of Idaho being a corporation; also that in the construction of the Agricultural Building, on the 17th of July, 1906, the contract was awarded to Colson & Son by the executive committee of the Board of Regents, which was thereafter approved by the Board of Regents and the contract was entered into and bond furnished for the completion of said building; that thereafter on the 29th of March, 1907, the Board of Regents, through its executive committee, gave Colson & Son written notice that unless they proceeded to work on the Agricultural Building within three days that they would forfeit their contract and would complete the work themselves; and on the 1st of April, 1907, the Regents of the University declared the contract forfeited and thereafter completed the •,construction of the building themselves. It is further stipulated that a contract was let to Colson & Son to complete the work for the foundation of the Administration Building and an agreement was entered into on October 10, 1906, with Colson & Son to construct said foundation. Colson & Son failed to furnish the bond required by the contract, and on the 12th of February, 1907,
Considerable evidence was taken by the referee and reported to this court, and it clearly appears from the evidence that the contract for the construction of the Agricultural Building was let to Colson & Son, and that before the building was completed the contract for the foundation of the Administration Building was let to the same contractors. In one contract they are called Colson & Son and in the other Colson & Sons. From the pleadings and the testimony it •appears that some of the materials and merchandise alleged to have been furnished was furnished for the construction of what is known as “Morrill Hall,” or the Agricultural Building, and some was furnished for. the construction of the foundation of the Administration Building. Under the contract for the construction of the Agricultural Building, the contractors gave bond and received estimates and warrants from time to time as the work progressed, in payment for such work. Before the completion of the building, numerous complaints were made to the regents of the nonpayment of bills by the contractors on said Agricultural Building, and the regents stopped payments to the contractors. The regents thereafter took charge of the Agricultural Building before it was completed and completed it themselves, and they held for the benefit of Colson’s creditors the amount of money remaining in their hands under the contract price, which was not utilized in the completion of the building. After con
The first, fourth and sixth causes of action are for the reasonable value of goods, wares, merchandise and materials furnished for the construction of said Agricultural Building. The second, third and fifth causes of action are for goods, wares, merchandise and materials furnished for the construction of the foundation of the Administration Building.
The materials furnished for the Agricultural Building were furnished to the contractors, Colson & Son, and it appears that the regents have paid all of the money due to the contractors to their creditors, pro rata. No claim is made for materials furnished to the Board of Regents after they had forfeited Colson & Son’s contract, on the Agricultural Building. All of the materials sued for in this action, so far as the Agricultural Building is concerned, were furnished to Colson & Son during the time that they were working under their contract in the construction of said building, and neither the state nor the Board of Regents is liable under the law and the evidence, for any of the material or merchandise furnished to Colson & Son for the construction of said Agricultural Building.
In regard to the contract for the construction of the foundation of the Administration Building, it appears that through negligence, carelessness or other causes, the contractors, Col-son & Son, were permitted to proceed with the work on said foundation from October 10, 1906, to the 13th of February, 1907, without furnishing the bond called for by the contract. Prior to the time the contract with Colson & Son was forfeited, the materialmen had furnished considerable materials that were used in the construction of said foundation. It appears that some of them had furnished material that was on the ground but which had not been used in the construction of the foundation at the time the contract was forfeited.
It is impossible to determine from the report of the referee and the evidence returned how much of the goods, wares and materials furnished by the respective parties were actually used and put into the construction of the foundation by Colson & Son prior to their forfeiture of the contract, nor have we been able to estimate the amount that was actually appropriated and used by the regents after they declared the forfeiture and undertook the completion of the work themselves. The nearest approximation we are able to
Under the foregoing provisions of the constitution and statutes, there can be no doubt but that the Board of Regents is a body corporate, and may sue and be sued, and that when they enter into a contract, they are liable to the process of the district court the same as any other corporation organ: ized under the laws of the state. The Board of Regents is a constitutional body, and while the state property could not be sold to satisfy a judgment against the Board of Regents, there is no doubt but that a judgment obtained against the board would be subject to payment out of any funds in the
It is therefore recommended that said Board of Regents apply the sum of $6,165.97 pro rata in payment of the several claims represented by the plaintiff herein for material furnished for the foundation of said Administration Building and to recover which this action is prosecuted.
Dissenting Opinion
Dissenting. — I am unable to agree with the majority opinion in this case, if such opinion decides any of the questions involved. I am unable to understand the conclusion of the court. If this court has no jurisdiction to render a recommendatory judgment, then why does the court decide that the Board of Regents should make payment if they have the funds on hand, and if not, that the legislature should make an appropriation for the payment of these claims to the aggregate amount of $6,165.971 I do not know just what kind of a judgment or conclusion this is, and I do not know where the court acquired any original jurisdiction to enter this character of judgment. The jurisdiction of this court to determine claims against the state has been fully considered by this court and determined in the case of Thomas v. State, 16 Ida. 81, 100 Pac. 761, and that case should either be followed or reversed.
When this case was commenced in this court, the complaint clearly disclosed that it was an action to establish claims against the Board of Regents of the State University, and this court appointed a referee to hear the testimony and make report, and the parties to this litigation have .gone to the expense and trouble of introducing their testimony, which is quite extensive, and if when the action was commenced the court was of the opinion that it would have no jurisdiction to hear the case under the provisions of the constitution, it should have said so, and not put these liti
In my opinion, either this court has jurisdiction to recommend a judgment to the legislature, or it has no jurisdiction of the action and the action should be dismissed. The court now concludes that the plaintiff has a claim against the state and that it should be paid. If so, this court should enter a recommendatory judgment to the legislature, and if the legislature has previously made an appropriation applicable to such payment, or the regents have funds in their hands, then the legislature can adjust that matter in making their appropriation to pay such judgment.