99 Mo. App. 483 | Mo. Ct. App. | 1903
This is an action for services for superintending the erection of a school building for defendant, costing about eight thousand dollars. The judgment below was for defendant. The point of difference is that the contract employing plaintiff was not in writing, signed by the parties thereto, as required by section 6759, Revised Statutes 1899, which reads as follows :
“No county, city, town, village, school township, school' district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such.contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made*486 and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing. ”
Since it has been decided by the Supreme Court (Saleno v. Neosho, 127 Mo. 627) that the fact of a contract not being executed in duplicate would not vitiate it, the defendant makes no point of objection on that head. But, as just stated, he does maintain that there was no showing of a contract in writing signed by the parties thereto.
At the close of plaintiff’s case the court sustained a demurrer to the evidence, and in consequence we will confine ourselves, on the facts, to what the evidence tends to show. Plaintiff testified that he made a proposition in writing to superintend the construction of the building for $25 per month; the service to occupy not more than one hour in the forenoon and one in the afternoon of each day. The evidence further showed the following action by the school board entered of record:
“By unanimous vote of the board in special session this day for the purpose of selecting a superintendent of construction, for the new school building, to act until the completance of the same, Gr. F. Perkins was elected as such superintendent, on his proposition that he was to do the work for $50. And full authority was given him to pass upon the work and material entering into the construction of said school building.
‘ ‘ Board then adjourned.
“F. M. Spragg, President.”
“Ellis F. Hopkins, Secretary.”
It was then shown that plaintiff performed service extending through six months, and that he received no compensation from defendant. It was, however, shown that he refused the compensation provided for in the following record order of the board:
“Motion carried by unanimous vote of the board, that Gr. F. Perkins ,be allowed $50 for full payment as his services as superintendent of construction of school*487 building, according to Ms proposition made at the time of Ms employment as such, superintendent.
“Warrant order in accordance with the above motion.
“F. M. Spragg, President.”
“Ellis F. Hopkins, Secretary.”
The evidence being that plaintiff made a “written proposition, ’ ’ we think its tendency is to show that he signed it. We, therefore, have evidence of a written proposition signed by the plaintiff. We have the further evidence that plaintiff was employed as superintendent and that a proposition of Ms was accepted by the board in writing duly signed by the proper officers. The point of difference in the evidence is that plaintiff stated Ms proposition was for $25 per month for work of two hours per day, and he sues upon a contract based on that; while the other evidence is that Ms proposition was for the definite sum of $50. If plaintiff had stated that Ms proposition was for $50, then the contract would have been valid, for Ms written proposition, followed by defendant’s written acceptance, together, made a complete contract. Water Co. v. Aurora, 129 Mo. 540; Saleno v. Neosho, 127 Mo. 627.
But plaintiff’s proposition to serve two hours per day for $25 per month was not accepted by the board. The proposition accepted by the board was wholly different; thus resulting in no contract. For the law is, “that to constitute a contract, the minds of the parties must assent to the same thing in the same sense. There .must be a mutual assent to all the propositions.” Green v. Cole, 103 Mo. 70; Cockrell v. McIntyre, 161 Mo. 59, 69. “The acceptance must be unequivocal, unconditional, and without any variance of any sort between it and the proposal.” Taylor v. Von Schraeder, 107 Mo. 206. Judge Robinson, in Scott v. Davis, 141 Mo. 213, stated the rule in yet broader terms. He said: “We regard the rule as well settled that the acceptance to close a contract on an offer must be absolute unambig
If it should be suggested that the written resolution of the board purporting to accept a proposition of $50 was itself a proposition to plaintiff of employment at that sum and accepted by him as evidenced by his performing the service, the answer would be that it was not accepted in writing as required by the statute aforesaid. The law as laid down in that statute has been frequently applied to attempts at contracts which were violative of its terms, and in every instance the terms of the statute have been enforced save as to the necessity for duplicate copies of the contract. Woolfolk v. Randolph Co., 83 Mo. 501; Crutchfield v. Warrensburg, 30 Mo. App. 456; Schell City v. Rumsey Mfg. Co., 39 Mo. App. 264; Taylor v. School Dist., 60 Mo. App. 372; Savage v. Springfield, 83 Mo. App. 323; Terry v. Board of Education, 84 Mo. App. 21.
There is a count in plaintiff’s petition in quantum meruit. It is, however, clear that if the statute forbidding public bodies from entering into contracts except in writing, is to have any effective enforcement, it will be necessary to deny the right of recovery for the value of services rendered on the ground of any implied undertaking. And so it has been held both here and in the St. Louis Court of Appeals. Schell City v. Rumsey, 39 Mo. App. 264; Savage v. Springfield, 83 Mo. App. 323; Terry v. Board of Education, 84 Mo. App. 21.
The judgment is affirmed.
