Stout v. Yamhill County

51 P. 442 | Or. | 1897

Mr. Justice Bean,

after stating the facts in the foregoing language, delivered the opinion of the court.

The rulings of the trial court were evidently based upon the theory that Henderson’s authority to make the contract upon which this action is based could be proven only by the records of the county court, and that parol evidence was not admissible to supplement such record as to facts which actually occurred, but of which the clerk neglected to make a proper record. In this we think the court was in error. A county court, when exercising the authority and powers pertaining to county commissioners under section 896 of Hill’s Ann. Laws, acts either as a court of inferior jurisdiction, or as the mere fiscal or managing agent of the county, according to the nature and character of the matter under consideration: Crossen v. Wasco County, 10 Or. 111; Frankl v. Bailey, 31 Or. 285 (50 Pac. 186). Its judicial proceedings must, like that of all courts, be proven by the record; but when it is acting as a mere managing agent in the transaction of the ordinary business of the county there is no law, statutory or otherwise, rendering invalid a contract made with or by its authority merely because such contract, or the authority of the person making it, is not entered in the records of the court, and there is no statute making the record the only evidence thereof. It is not the record, but the assent and agreement of the members of the court when in session, and acting as a court, which gives validity to the contract; and the negligence of the clerk in failing to fully record their proceedings cannot nullify their acts. If the clerk makes a complete record, as the statute seems to contemplate he shall do (section 903), such record is competent, and the best evidence of its acts, and perhaps cannot be contradicted by parol; but, if he fails to perform this duty, it is no defense to an action against the county upon the contract as actually made. The reason is apparent. A party contracting with a county court has no power or authority to determine what shall or shall not be entered in the records. That is a matter which rests alone with the county officers, and the law will not permit prejudice or loss to such a party by reason of the negligence or intentional omission of the other contracting party to make the records of the court show all its acts and proceedings, but allows the omission to be supplied by parol. This rule has been recognized and enforced in many jurisdictions in cases similar to the one at bar and seems well settled: 20 Am. and Eng. Enc. Law (1st ed.), 501; 1 Dillon on Municipal Corporations, §§ 300, 301; Tiedeman on Municipal Corporations, § 108; Gillett v. Commissioners, 18 Kan. 410; Chicago Railway Company v. Commissioners of Stafford County, 36 Kan. 121 (12 Pac. 593); Rock Creek Township v. Codding, 42 Kan. 649 (22 Pac. 741); Athearn v. Independent District, 33 Iowa, 105; Jordan v. Osceola County, 59 Iowa, 388 (13 N. W. 344); Morgan v. Wilfley, 71 Iowa, 212 (32 N. W. 265); Taymouth v. Koehler, 35 Mich. 22; School District v. Clark, 90 Mich. 435 (51 N. W. 529); German Insurance Company, of Freeport v. Independent School District of Milford, 25 C. C. A. 492 (80 Fed. 366). It follows that the judgment of the court below must be reversed, and a new trial ordered.

Reversed.