Smith County v. Mangum, 89 So. 913

89 So. 913 | Miss. | 1921

Sykes, J.,

delivered the opinion of the court.

The appellee, J. J. Mangum, as plaintiff in the circuit court, filed suit against Smith county for the sum of four thousand, seven hundred and seventy dollars. In his declaration he alleges that the board of supervisors of Smith county legally adopted certain plans and specifications for the building of a bridge across Ocohay creek on a public road in the county. That the board made publication as required by law for the letting of the contract and at the proper time the appellee became the lowest and best bidder and was awarded the contract for the building of the bridge. That his bond was properly approved by the board. That in compliance with this contract he constructed the bridge, but that the board has declined and refused to pay him for this work. The county pleaded the general issue, and filed several special pleas, which it is unnecessary to set out in detail. By agreement the case was tried by the judge and judgment in favor of the appellee Mangum was entered for the sum of four thousand, fiv'e hundred, seventy-one dollars and fifty cents, from which judgment this appeal is prosecuted.

The order of the board of supervisors authorizing the advertisement for the awarding of this contract provided, among other things, that it reserved the right to reject any and all bids. Assuming, as we must, for the purpose of a decision in this case, that all controverted questions of fact were resolved in favor of the appellee, it appears from these facts that the board complied with all the statutory requirements pertaining to the awarding of contracts of this character to the time the contract was actually let at public outcry when the appellee became the best bidder. The contract was let at public outcry at the front door of the courthouse by one of - the members of the board of supervisors. Immediately thereafter the appellee appeared before the board of supervisors and inquired how long they would be in session, and if they would permit him to return to his home in another county for tbe purpose of making Ms bond. He was orally told by them that they would remain in session for several days, and they would receive his bond at a later date. That a few days thereafter, Avhile the board ivas still in session, he presented them with a bond, and it was then discovered by some member of the board that the sureties had not acknowledged it before an officer, and he was then orally requested by the board to have the bond properly acknoAvl-edged and return it to the clerk of the board by mail. That he complied with this request, and the bond was received and kept by the clerk of the board. That there was no objection to the bond, and there was no formal approval of it by the board of supervisors, further than the possession and holding of it by the clerk of the board. There was no formal Avritten order spread upon the minutes of the board of supervisors awarding to appellee the contract to build the bridge. The appellee became the best bidder at the December meeting of the board. No order of the board of supervisors was spread upon the minutes at that meeting, either accepting or rejecting this bid. In the meantime the appellee began the building of the bridge, and this work had progressed to a very great extent when at the January meeting of the board of supervisors an order was spread upon the minutes, rejecting appellee’s bid. One of the members of the board of supervisors, the latter part of January, notified the agent of the appellee that his bid had been rejected. That this agent thereupon took the matter up with three members of the board of supervisors, and Avas assured by them that it would be all right for him to proceed with the erection of the bridge. The testimony further shows that the appellee Avas furnished by the board of supervisors with the plans and specifications and blueprints of the bridge. That the. bridge is across one of the most important highways of the county. That after the completion of the bridge it was inspected by the members of the board of supervisors and found to comply in all respects with the plans and specifications. That since its completion with the full knowledge and consent of the board of supervisors the bridge has been used by the citizens of the county.

The contentions of the appellee as expressed in his brief, are these:

First, Did appellee have such a contract with the board for the building of the bridge as to bind the county?

Second. If appellee had no valid contract, then was the course of dealing between the board and himself such as to bind the county on the doctrine of quantum meruit?

Section 361, Code of 1906 (section 3734, Hemingway’s Code), provides hoiv contracts of this character shaíl be made by the board. It has been repeatedly held by this court that the board of supervisors can only act and speak through its minutes; that is through orders entered upon its minutes. While a member of the board of supervisors at public outcry acknowledged the appellee as the lowest, best, and acceptable bidder, yet this action is not binding upon the board of supervisors unless an order spread upon its minutes awarding' the contract to the appellee is actually made. This rule has been variously stated by this court.

In the case of Crump v. Board of Supervisors of Colfax County, 52 Miss. 107, it is stated that:

“It would- seem to be manifest, therefore, that whatever action is taken on any subject whatever must be evidenced by an entry on its records.

“It can only enter into an express contract by its assent thereto, in some form or other, entered on its minutes.”

Again in the case of Board of Supervisors of Benton County v. Patrick et al., 54 Miss. 240, the court upon this question cites with approval the Grump Case, supra, and adds the following:

“if the contractors or the commissioner thought the alterations necessary, authority to malee them ought to have been obtained from the board, and its consent manifested by its reco"d.”

In the case of Bridges & Hill v. Board of Supervisors of Clay County, 58 Miss. 817, speaking of a similar contract, it is there held that:

“Boards of supervisors bind counties only when acting within the range of their authority, and in the mode and manner pointed out by the statutes. Their contracts are evidenced by the entries on their minutes, and can no more be varied by proof that the members failed to speak, though they knew that those with whom they were dealing misunderstood the purport of what they were doing, than they can be created and established by silence alone. It takes an affirmative act of the board within the scope of its authority, evidenced by an entry on its minutes, to bind the county by a contract; and when thus made, the contract is not to be varied, any more than created, by the mere silence of a portion of the board and the mistaken assertions of others.”

In the case of Dixon v. Greene County, 76 Miss. 794, 25 So. 665, the court says that: “The only express contract made by the board was to be found in the order on its minutes, and the plans and specifications made part thereof by reference.”

In discussing the same question the court in the case of Groton Co. v. Warren County, 80 Miss. 214, 31 So. 711, says that — The board of supervisors may “by a new contract, or an amendment of its original contract, or by a ratification (all of which must be by acts of the board in open session, spread upon its minutes), bind the county to pay in each of the cases named. And parties contracting with the counties are charged with the knowledge of this statute. . . .”

This doctrine is reiterated in the case of Marion County v. Foxworth, 83 Miss. 677, 36 So. 36, in the following language :

“Such contracts, like all other contracts made by boards of supervisors, must be evidenced by orders duly entered on their minutes, or by papers in such orders referred to and made a part thereof.”

To the same effect are Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619, and Lamar County v. Tally & Mayson, 116 Miss. 588, 77 So. 299.

Under these authorities it is manifest that the board of supervisors of a county can only enter into an express contract by an order spread upon its minutes, and that there can be no such thing as a verbal or oral order of this board. It, therefore, follows that the appellee had no express contract with the county for the building of the bridge.

.The two sections of the Code relating to contracts of this character are sections B61 and 369, Code of 1906, (sections 3734 and 3742, Hemingway’s Code). The first provides how contracts for public work are made; the second, that contracts of this kind shall not be made in vacation, except in certain cases therein stated. This latter section was section 344, Code of 1892. In the case of Groton Co. v. Warren County, supra, the appellant was attempting to hold the county liable on a quantum meruit basis. In their holding that there could be no such recovery it is stated in the opinion that such liability on an implied contract will not attach where an express contract only is contemplated by statute, citing authorities. Again it is said that:

“It is plain from this that a county cannot, as to the subject-matter covered by section 344, be bound by an implied contract. The very purpose of this statute was to cut off entirely any fraudulent claims for extra work done and materials furnished, and it limits the board of supervisors to express contracts in respect to the subject-matters embraced in the statute, made in the mode pointed out.”

This reason Avith equal force applies to contracts made under section 369, Code of 1906 (section 3742, Hemingway’s Code). Under both of these sections only express contracts are contemplated, and therefore no recovery can be had under claim of an implied contract.

It, therefore, follows that the appellee cannot recover on a quantum meruit basis. The circuit court should have entered judgment in favor of the appellant. • '

Reversed, and judgment will be entered here in favor of appellant.

. Reversed.