135 Ga. 162 | Ga. | 1910
(After the foregoing statement.) As appears from the bill of exceptions and the judgment of the court, the plaintiff’s petition was dismissed upon the general demurrer.
I. The contract with the county, relied on by the plaintiff as the ■foundation of his right to recover against defendant, was in writing, as is required by law, but it was not entered on the minutes, as prescribed in ■§ 343 of the Political Code, before the work of erecting the court-house had begun, nor even during the progress of that work. Subsequently to the completion of the building and the delivery of it to the county authorities, .a demand was made
The controlling question in this case as it stands at present is, whether the entry of the contract on the minutes of the ordinary subsequently to the completion of the work provided for in the contract, at the command of the court in mandamus proceedings, could give to the party contracting with the county the same rights under the contract as if that contract had been entered on the minutes previously to the commencement of the work or during its progress. The court below was of the opinion that if the contract “is kept off the minutes until the contract has been fully executed and the work finished,” it could not be enforced at the instance of the party contracting with the county. It has been repeatedly ruled that in a suit against the county'upon a contract like this one an allegation that the same was in writing and had been entered on the minutes was necessary to^he maintenance of the suit; but it has never been held, and nothing in the statute requires such a holding, that the contract could not be enforced where it has been entered prior to the time of bringing the suit for its enforcement, although the entry was not made before the commencement of the work or during its progress. In the -case of Jones v. Bank of Cumming, supra, where the judgment of the court below granting mandamus absolute against the ordinary and requiring him to enter the contract in question upon his minutes was under consideration, Justice Lumpkin has collected the cases bearing upon the question of the validity of contracts with a county of the character of that involved in this ease, and (p. 624), after reviewing them, says: “The statement that the object of the law requiring the entry of such contracts on the minutes is to give information easily aceessible to the public, as to the character of contracts being made by the county authorities) is equally true, whether the provision as to entering on the minutes be treated as mandatory or directory. If the failure of the ordinary to enter
2. There were sufficient allegations in the petition, of the presentation of plaintiffs demand and claim against the county within the time prescribed by statute, and of the acceptance of the building erected under the contract sued on; consequently the grounds of general defnurrer attacking the petition for the lack of such allegations should have been overruled.
The special demurrers were not passed upon by the court below, but, as stated above, the petition was dismissed upon grounds taken in the general demurrer, and the questions covered by the special demurrers are left open for determination by the court below. Judgment reversed.